In its recent ruling in Weiss v. Trader Joe’s Company, the Central District of California faced the question of whether certain statements on product labels promoting high-alkalinity water were false and misleading or simply puffery. Among these statements were claims that the water is “ionized to achieve the perfect balance.” Plaintiff Dana Weiss argued
Last week, the California Court of Appeal held that a plaintiff’s suit seeking to require Proposition 65 acrylamide based cancer warnings on 59 popular breakfast cereals was pre-empted by federal nutrition policies aimed at encouraging Americans to consume more whole grains and by FDA letters stating that any warnings should be deferred given the uncertain science on the risks to humans of acrylamide in food. This conflict pre-emption ruling should help convince courts in other contexts that state warning requirements should defer to more carefully articulated federal policies.
Acrylamide, which forms in many foods during high-temperature cooking (e.g., frying, roasting, baking), has been a Proposition 65 listed substance since 1990, though its presence in food was not discovered until 2002. As the FDA has stated, there is much uncertainty if the levels of acrylamide in food pose any risk to humans.…
Continue Reading Notable Ruling: Precedent-Setting Proposition 65 Pre-emption Decision Involving Breakfast Cereal