California’s Prop 65 Loses to First Amendment

May 7, 2025

Last week, on May 2, 2025, a federal district court in California found that Prop 65 warnings for dietary acrylamide are unconstitutional under the First Amendment of the U.S. Constitution. (Cal. Chamber of Comm. v. Bonta, 19-cv-02019, Order Granting Summary Judgment (E.D. Cal., May 5, 2025).) The court’s finding is the latest in a series of legal decisions addressing the subject and is most certainly going to result in yet another appeal to the Ninth Circuit Court of Appeals. Meanwhile, a statewide injunction, issued by the district court as part of its decision, prohibits the enforcement of Prop 65 against businesses with food products containing dietary acrylamide.

How impactful the district court’s decision ends up being on other Prop 65-regulated chemicals remains to be seen. While some in the citizen enforcer community claim the decision will bring Prop 65 enforcement to a standstill, that outcome seems unlikely. However, it does seem likely that other similarly regulated Prop 65 chemicals may be vulnerable to First Amendment challenges. Time will tell whether other businesses impacted by Prop 65 warning obligations are willing to mount similar First Amendment legal challenges.

Years of litigation preceded the district court’s latest decision. The California Chamber of Commerce’s (Chamber) legal challenge was filed in 2019 against the State of California over whether Prop 65 warnings can properly be enforced against dietary acrylamide. The Chamber’s legal challenge has been consistent and successful, i.e., Prop 65 warnings on products containing dietary acrylamide are unnecessary and violate the Chamber’s members’ First Amendment rights. Underlying the Chamber’s legal challenge is a significant fact: while California has designated dietary acrylamide as a carcinogen, the science behind that determination does not support that designation based on the statutory language of Prop 65.

Without getting lost in the details, the district court explains that Prop 65 only requires warnings on products that contain regulated chemicals that are known to cause cancer in humans, and not animals. And for dietary acrylamide, science has only determined the chemical to cause cancer in animals and not in humans. As a result, the district court found that placing a Prop 65 warning was unnecessary and resulted in compelled speech and a violation of the First Amendment.

Actively evaluating their options for mounting their own First Amendment legal challenges to Prop 65, businesses and business groups are buoyed by the decision and the precedent it establishes. Conversely, it remains to be seen whether the dietary acrylamide decision will lead to the parade of successive First Amendment challenges feared by the Prop 65 citizen enforcer community.

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California’s Prop 65 Loses to First Amendment

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