9th Cir. Won’t Revisit Injunction Barring Prop. 65 Cases Over Acrylamide in Food Products

On Wednesday, the United States Court of Appeals for the Ninth Circuit denied a petition for a rehearing en banc brought by intervenor-defendant-appellant Council for Education and Research on Toxics (CERT), an advocacy group which claims expertise on acrylamide issues. 

The decision leaves in place a March 2022 appellate opinion in favor of the California Chamber of Commerce (Chamber) who originally sued the state’s attorney general to stop litigation over food products containing acrylamide under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65, which requires warnings on products containing carcinogenic chemicals. 

The Chamber brought suit under Title 42 Section 1983 against the California Attorney General purportedly to vindicate its “… members’ First Amendment right not to be compelled to place false and misleading acrylamide warnings on their food products.” CERT intervened in the suit on behalf of the state. The district court granted the Chamber’s motion for a preliminary injunction and CERT appealed, though the state attorney general declined to do so.

In an opinion dated Mar. 17, 2022, the Ninth Circuit affirmed the lower court’s decision. The panel considered myriad issues in affirming the preliminary injunction. 

While CERT argued that the preliminary injunction is “a prior restraint that violates its First Amendment right to petition,” the Ninth Circuit rejected the idea. “The district court found the ‘illegal objective’ of any Prop. 65 lawsuit prevented CERT from making a prior restraint claim,” the opinion said, declining this and other arguments CERT made on appeal.

According to the dissenting Ninth Circuit judges in this week’s denial of rehearing, “[t]he merit panel’s opinion contradicts decades of settled First Amendment precedent regarding the ‘illegal objective’ exception. The dissent’s view is that the current decision “transforms a narrowly tailored labor law doctrine into a broad tool permitting the preclusion of the filing of good faith, reasonably based lawsuits when a judge predetermines the merits of those lawsuits-or, in the case of a preliminary injunction, predicts the likely merits.”

CERT is represented by the Metzger Law Group and the Chamber of Commerce by Arnold & Porter Kaye Scholar LLP.