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Prop 65 Warnings Not Required on Cereals, Says Court

August 2, 2018

A California appeals court reversed a trial court decision that would have required a Proposition 65 warning on breakfast cereals.  Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, prohibits a company from knowingly exposing any individual to a listed chemical without first providing a "clear and reasonable warning" to such individual.

Plaintiff Richard Sowinski filed the suit to require Proposition 65 acrylamide warnings on 59 cereals sold by three companies:  Post Foods, LLC; General Mills, Inc.; and Kellogg USA hereinafter “the Petitioners”).  Cereal, like many roasted or fried foods, contains acrylamide. Acrylamide—which is generated naturally when carbohydrate-rich foods are baked, roasted, fried, or deep fried—was added to the Prop 65 list of chemicals known to cause cancer in 1990.

The Petitioners argued that Prop 65 warnings on cereals are preempted by federal law due to federal policy objectives to increase Americans’ consumption of whole grains.  In support, the Petitioners cited numerous federal statutes establishing that policy and U.S. Food and Drug Administration (FDA) letters to California regulators cautioning against Prop 65 warnings on cereals.  In one letter to California, FDA argued “that premature labeling of many foods with warnings about dangerous levels of acrylamide would confuse and could potentially mislead consumers, both because the labeling would be so broad as to be meaningless and because the risk of consumption of acrylamide in food is not yet clear.”  In response to FDA’s letter, California’s Office of Environmental Health Hazard Assessment (OEHHA), the agency responsible agreed to postpone requiring acrylamide warnings while FDA continued to study the chemical.  

In June 2017, the trial court denied the Petitioners’ motion for summary judgement, determining that a Prop 65 warning was not an obstacle to the federal government’s efforts to encourage consumers to eat more whole grains since there has be no acrylamide warning requirement at the federal level since no acrylamide warning is required at the federal level.

The California appeals court disagreed and reversed the trial court’s decision on July 16, arguing that the trial court had overlooked FDA’s concern.  The appeals court wrote, “We conclude that Petitioners’ summary judgement motion papers established that a Preposition 65 warning for acrylamide on breakfast cereals would pose an obstacle to the federal scheme and therefore is preempted by federal law.”  The case is Post Foods LLC et al. v. The Superior Court of Los Angeles County et al., case number B284057, in the Court of Appeal of the State of California.