California Chamber of Commerce v. Bonta

Neal D. Fortin*

Why It Made the List

On May 2, 2025, the U.S. District Court for the Eastern District of California ruled in California Chamber of Commerce v. Bonta that California’s warning requirements for dietary acrylamide violate the First Amendment.[1] The court issued a permanent injunction prohibiting enforcement of Proposition 65 (Prop 65) warnings for acrylamide in food.

This case provides landmark relief from Prop 65 enforcement threats, litigation, and forced warning statements to food manufacturers, distributors, and retailers. Prop 65, also known as the Safe Drinking Water and Toxic Enforcement Act, was enacted by California voters as a ballot initiative on November 4, 1986.[2] Among other things, the law requires the Governor of California to publish a “list of those chemicals known to the state to cause cancer or reproductive toxicity. . .” Acrylamide has been on the Prop 65 list of chemicals “known to the state to cause cancer” since 1990.

To avoid litigation and potential penalties of up to $2,500 per day per violation, businesses can display one of the Prop 65 “safe harbor” warnings that advise consumers that “Consuming this product can expose you to acrylamide, which is known to the State of California to cause cancer.”[3] Without the warnings, businesses face enforcement actions by the state and private enforcers. Thus, many chose to place warnings on all food products containing acrylamide.

Acrylamide forms naturally during high-temperature baking, roasting, and frying of plant-based foods. Thousands of manufacturers, distributors, and sellers of these foods are now relieved from posting Prop 65 warnings for acrylamide. Likely tens of thousands of food products sold in the United States contain some acrylamide because it forms in all carbohydrate-rich foods cooked at high temperatures, such as French fries, cookies, cereals, bread, potato chips, and crackers.

Discussion

Background

The California Office of Environmental Health Hazard Assessment (OEHHA)[4] is the lead agency designated by the Governor to implement and enforce Prop 65. OEHHA designated five agencies as “authoritative bodies” for carcinogen identification: the United Nations World Health Organization’s International Agency for Research on Cancer (IARC), the National Institute for Occupational Safety and Health, the National Toxicology Program (NTP), the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA).[5] OEHHA must list a chemical as “known to the state to cause cancer” if one of those authoritative bodies has formally identified the chemical as causing cancer.[6] A chemical must be listed even if it is only known to cause cancer in animals but not humans. Businesses are required to warn before exposing individuals to a listed chemical unless a “no significant risk” exemption applies, which is defined as no more than 1 in 100,000 excess people getting cancer in a lifetime of exposure.[7]

In 1986, IARC determined that acrylamide was “possibly” carcinogenic to humans.[8] In 1988, the EPA classified acrylamide as a probable carcinogen in humans.[9] In 1990, OEHHA listed acrylamide as a chemical “known to the State of California to cause cancer” based on the determinations by IARC and EPA. Based on further evidence in 1994, the IARC classified acrylamide as “probably carcinogenic in humans.”[10] Subsequently, the NTP listed acrylamide as “reasonably anticipated to be a human carcinogen.” At that time, acrylamide was known as an industrial chemical used in plastics and grouting agents. It had not yet been discovered in food.[11]

However, in 2002, researchers discovered that acrylamide forms in certain plant-based foods during high-temperature cooking processes, such as frying, roasting, and baking. Although the hazard of acrylamide in animal studies was clear, the risk to humans was the subject of considerable scientific debate and uncertainty.

Hazard Versus Risk

To paraphrase Paracelsus, the dose makes the poison.[12] IARC, EPA, and NTP determined that acrylamide is a hazard; that is, capable of causing cancer in some circumstances. However, a hazard determination differs from a risk determination. Risk depends on the hazard’s potency times the amount of exposure.

The distinction between hazard and risk is critical when issuing a warning statement, such as the Prop 65 acrylamide warnings. A factual statement about a hazard can be perceived as a risk warning, which is misleading. “[T]he Court looks to the meaning of the warning in context, which clearly communicates the message that dietary acrylamide poses a risk of cancer.”[13] When examining the warning sentence by sentence, each sentence may be factually accurate, but the overall message conveyed may be misleading. The Ninth Circuit has adopted the approach of considering the overall impression delivered by a compelled warning.[14]

Lack of Scientific Consensus

While IARC, EPA, and NTP found acrylamide to be a “probable” or “likely” carcinogen based on animal studies, the court noted that human epidemiological studies do not support this conclusion. Leading institutions like FDA, the National Cancer Institute, and the American Cancer Society have expressed uncertainty or found no link between dietary acrylamide and cancer in humans.[15] In short, there is no scientific consensus that dietary acrylamide is a carcinogenic risk to humans.

The court found the acrylamide Prop 65 warning to be misleading because it conveys the message that dietary acrylamide increases a consumer’s risk of cancer, even though this is an unsettled question in the scientific community.[16] Factually accurate phrases, such as acrylamide being “probably carcinogenic,” were deemed misleading in context because they imply a cancer risk from everyday food consumption with insufficient scientific agreement.[17]

The Holding

The court found that Prop 65 compelled businesses to convey acrylamide warnings that are controversial and misleading because they state that dietary acrylamide is carcinogenic to humans despite vigorous scientific debate.[18] Thus, the required warnings are unconstitutional.

The Supreme Court has created two tests to assess the constitutionality of government action regarding commercial speech. The less stringent test, Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, states that the government “may compel commercial speech so long as it is reasonably related to a substantial governmental interest, and the compelled speech is (1) purely factual, (2) noncontroversial, and (3) not unjustified or unduly burdensome.”[19] Applying this test in Bonta case, the district court found that the Prop 65 warnings were “neither uncontroversial nor purely factual as the warnings espouse a one-sided view that dietary acrylamide poses a human cancer risk despite a lack of scientific consensus.”[20] Thus, the warnings fail to satisfy the Zauderer standard.

Under the more stringent test in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, the government may restrict or prohibit commercial speech that is not misleading or related to illegal activity if the restriction or prohibition directly advances a substantial governmental interest and is not more extensive than necessary.[21] As to the acrylamide warnings, the district court concluded that “misleading statements about acrylamide’s carcinogenicity do not advance the State’s interests in protecting the health of its citizens and that the State has less burdensome alternatives to achieve its goals.”[22] California has an interest in preserving its citizens’ health; however, providing consumers with misleading or false labels undermines California’s interest in accurately informing its citizens about health risks. In addition, California has options for informing consumers about acrylamide in food, such as advertising campaigns or online postings, without burdening businesses’ free speech. “[T]he First Amendment does not permit the State to sacrifice speech for efficiency.”[23] Accordingly, the court concluded that the Prop 65 warnings failed under the Central Hudson test as well.

Because the Prop 65 warnings for dietary acrylamide fail to satisfy either standard, they violate the First Amendment. Therefore, the court granted a permanent injunction prohibiting the enforcement of Prop 65 warnings for acrylamide in food.

Impact

OEHHA had set the safe exposure limit of acrylamide at a remarkably low 0.2 µg/day. This is about the amount found in a single French fry or a fragment of a potato chip.[24] Consequently, nearly all carbohydrate-rich foods that are baked, roasted, or fried contain some acrylamide, including cookies, cereals, bread, potato chips, and crackers, as well as coffee and some pasteurized fruit juices. Therefore, tens of thousands of food products were impacted by the acrylamide Prop 65 warning.

The permanent injunction bars California state officials and private parties from enforcing the Prop. 65 warning as it relates to acrylamide in food. Food businesses no longer need to include acrylamide warnings on food products sold in California. Previously applied warnings may be removed from product packaging, websites, and point-of-sale materials.

The ruling should halt all pending or threatened Prop. 65 lawsuits and notices of violation regarding dietary acrylamide. Any businesses facing Prop. 65 litigation involving acrylamide in food can seek dismissal or withdrawal of the action. Prior consent judgments will not automatically be voided, but they may be eligible for revision based on the ruling.

An earlier decision regarding Prop. 65 warnings for glyphosate also found that the warnings violated the First Amendment.[25] An additional earlier decision granted a regulatory carve-out exempting coffee from Prop 65 acrylamide warning requirements.[26] With close court scrutiny of whether mandated Prop. 65 warnings are “purely factual and uncontroversial,” additional warnings may fail to meet the standard. Spurred by these reversals, we can expect more challenges to Prop 65 requirements. Probably wishful thinking, but perhaps going forward, legislatures will be more mindful of the principles of risk communication and the distinction between hazard and risk.

*   Neal D. Fortin is a professor in the Department of Food Science and Human Nutrition at Michigan State University (MSU), an adjunct professor of law at the MSU College of Law, and Director of the MSU Institute for Food Laws & Regulations. He teaches the classes U.S. Food Law, International Food Law, Codex Alimentarius, and Regulatory Leadership in Food Law. Mr. Fortin is also an attorney concentrating in food law and author of Food Regulation: Law, Science, Policy, and Practice and Advanced Introduction to International Food Law.

[1]   California Chamber of Commerce v. Bonta, 781 F.Supp.3d 1071 (2025).

[2]   Cal. Health & Safety Code §§ 25249.5–25249.14.

[3]   Id. at §§ 25249.6, 25249.10.

[4]   OEHHA is typically pronounced “oh-EEE-ha.”

[5]   Cal. Code Regs. tit. 27, § 25306(m).

[6]   Cal. Health & Safety Code § 25249.8(b).

[7]   Cal. Health & Safety Code § 25249.10(c); Cal. Code Regs. tit. 27, § 25703(b).

[8]   Int’l Agency For Rsch. On Cancer, Acrylamide, in Some Chemicals Used in Plastics and Elastomers 233–35 (IARC Monographs on the Evaluation of the Carcinogenic Risk of Chemicals to Humans, vol. 39, 1986).

[9]   U.S. Env’t Prot. Agency, Integrated Risk Information System (IRIS): Acrylamide (CASRN 79‑06‑1) (1988), https://iris.epa.gov/static/pdfs/0286_summary.pdf.

[10] Int’l Agency For Rsch. On Cancer, Acrylamide, in Some Industrial Chemicals (IARC Monographs on the Evaluation of Carcinogenic Risks to Humans vol. 60, 1994) at 425 (inadequate evidence for human but sufficient evidence for animals).

[11] California Chamber of Commerce v. Bonta, 781 F.Supp.3d 1071, 1076–1077 (2025) (undisputed material facts).

[12] Paracelsus, Die dritte Defension wegen des Schreibens der neuen Rezepte (1538), reprinted in 2 Werke 510 (Darmstadt 1965) (“Alle Dinge sind Gift, und nichts ist ohne Gift; allein die Dosis macht, dass ein Ding kein Gift ist.” or “All things are poison, and nothing is without poison; only the dose makes a thing not a poison.”)

[13] Bonta, 781 F.Supp.3d at 1084.

[14] Bonta, 781 F.Supp.3d at 1085.

[15] Bonta, 781 F.Supp.3d at 1086.

[16] Bonta, 781 F.Supp.3d at 1087.

[17] Id.

[18] Id. at 1074

[19] Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 651 (1985).

[20] Id. at 1084.

[21] Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 564 (1980).

[22] Bonta, 781 F.Supp.3d at 1084.

[23] Nat’l Ass’n Wheat Growers v. Bonta (“NAWG”), 85 F.4th 1263,1283 (9th Cir. 2023).

[24] Cal. Code Regs. tit. 27, § 25705(b)(1). FDA reported an average acrylamide level in French fries of 50 µg/kg. Four grams of French fries, or about one small fry, therefore, would contain 0.2 µg. The FDA data shows potato chips falling within the 700–2500 ppb range (ppb = µg/kg). At 1,000 ppb, 0.1 g of a potato chip would contain 0.2 µg acrylamide, which is about 1/10th of a chip. FDA, Survey Data on Acrylamide in Food, https://www.fda.gov/food/process-contaminants-food/survey-data-acrylamide-food (last visited Mar. 17, 2026).

[25] Nat’l Ass’n of Wheat Growers v. Bonta, 85 F.4th 1263, 1266 (9th Cir. 2023).

[26] CERT v. Starbucks Corporation, 300 Cal. Rptr. 3d 729 (Cal Ct. App. 2022).