SACRAMENTO, Calif. (CN) — A federal judge in California on Wednesday appeared skeptical that current scientific evidence supports a warning label on food containing acrylamide, a substance found in a wide variety of edible products.
U.S. District Court Judge Daniel Calabretta told attorneys that he’s concerned as to how consumers would interpret a warning label for acrylamide, which is found in baked and fried foods like french fries and potato chips. Studies haven’t definitively linked the substance as a cancer risk to humans, though the state Attorney General’s Office is fighting against the California Chamber of Commerce to make such a warning.
The judge made no decision on Wednesday.
Acrylamide is produced to treat drinking water and for making plastics. It can occur naturally in food.
Some studies have shown rats that consumed food and water with acrylamide were more likely to develop cancerous tumors. However, epidemiologists have no consensus about its effects on humans.
“Consumers don’t understand all that,” said Calabretta, a Joe Biden appointee. “If the science isn’t there, it’s misleading.”
The state chamber of commerce filed suit in 2019 against the attorney general, arguing that California’s Proposition 65 would require businesses to place a false and misleading warning on certain products — a First Amendment violation.
A federal judge in 2021 issued an order prohibiting the state or private parties from suing companies that don’t put a Proposition 65 warning on foods with acrylamide. The Ninth Circuit the following year upheld an injunction temporarily barring its enforcement.
That led the chamber of commerce to ask Calabretta for summary judgment, ruling that requiring such a warning would violate the First Amendment and making the temporary injunction permanent.
Calabretta said studies show that acrylamide is a hazard, adding that there’s significant debate about what that means for humans.
Deputy Attorney General Megan Hey argued that there’s no First Amendment violation with the required warning, because exemptions exist. There are some foods that contain acrylamide that are not required to have a warning.
The judge appeared to disagree. He noted that acrylamide levels can vary widely between products. Businesses would have to create their own warning or potentially face litigation.
Calabretta pointed out that studies on each product, which would have varying levels of the chemical, would be an impossibility.
Norris said that, although a study did find a link between acrylamide and some types of cancer, it was a weak link. Meteors can fall from the sky and hit people, Norris argued, calling that a hazard, though the risk of that happening is low.
However, the judge also said acrylamide is a likely human carcinogen. Norris said uncertainty exists as to whether a human would get cancer by ingesting food or drink containing the substance.
“The Prop 65 warning is about risk,” Norris said, questioning what effect a warning label would have on the consumer. He argued someone would see a warning and think they’d get cancer from the product, while the science doesn’t support that.
Hey said studies are fraught with uncertainty. They may be inadequate, but that doesn’t mean there’s no link between acrylamide and cancer, he said.
Calabretta then returned to his initial concern: How would a consumer digest a warning label?
“You’re giving the warning for a reason, right?” the judge asked, adding that it appeared the government wanted to sway consumers through a warning without scientific evidence.
Hey said the government’s job is to identify hazards to people, adding that there’s a risk to people depending on how much acrylamide someone consumes, and Californians deserve to know about that hazard.
“This is a very complicated case, both factually and legally,” Calabretta said. “I hope to get you an answer soon.”