Calif. AG Wants Redo on Ruling Barring Cereal Cancer Warnings

Photographer: Daniel Acker/Bloomberg

  • Court asked to revisit decision that federal policy blocks Proposition 65 warning over acrylamide in cereals
  • California attorney general joins in request for rehearing

A California appeals court should reverse its ruling that federal law bars state-mandated warnings about cancer risks associated with a chemical found in dozens of cereals made by Post Foods LLC, General Mills Inc., and Kellogg USA Inc., the state’s attorney general says.

An acrylamide warning under California’s Proposition 65 would mislead consumers and cause them to avoid whole grains, presenting an obstacle to federal nutrition policies that encourage people to eat whole grains, the California Court of Appeals, Second District, said in July.

The court made serious mistakes of law in finding “conflict” or “obstacle” preemption as to Proposition 65, an “information” statute designed to inform consumers of the presence of certain specific carcinogens in specific consumer products, plaintiff Richard Sawinski argued in a petition for rehearing.

California Attorney General Xavier Becerra joined Sawinski’s petition asking the California Court of Appeal to reverse its decision.

Becerra also asked the court, if it doesn’t agree to rehear the case, to omit certain language from the opinion that could suggest it applies to foods that weren’t part of the case.

Sawinski plans to seek review in the California Supreme Court if he is unsuccessful in the appeals court, his attorney, Anthony Graham of Graham & Martin in Santa Ana, Calif., said.

Arnold & Porter Kaye Scholer and Perkins Coie represented the defendants.

The case is Post Foods, LLC v. Superior Court, Cal. Ct. App., 2d Dist., No. B284057, petition 7/31/18.

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com