Following Dowhal v. SmithKline Beecham Consumer Healthcare (2004) 32 Cal.4th 910 (which found that the FDA Modernization Act preempted Prop. 65 insofar as the proposition would have required warning labels on nicotine patches), this decision holds that the federal Nutrition Education Act, which promotes a diet including whole grains, preempts Prop. 65 insofar as it would require a warning label on cereal due to the natural presence of acrylamide in cooked grains.  The trial court should have deferred to the FDA’s weighing of benefits and burdens of Prop. 65 warnings as stated in two advice letters from the FDA to California officials regarding acrylamide.

California Court of Appeal, Second District, Division 1 (Chaney, J.); July 16, 2018; 2018 Cal. App. LEXIS 631