Zac Morgan is a Senior Litigation Counsel with Washington Legal Foundation.

Children growing up in California all share two formative experiences.

The first: the sudden and panic-inducing realization, thanks to a large disclaimer affixed within a store, that you have stumbled into an establishment which sells, and from which you may perhaps be about to purchase, an item known to the government to contain a chemical that causes cancer.

The second, typically delivered in the form of a soothing explanation from a trusted adult: there’s nothing to worry about, the disclaimers are very often useless clutter. Since the government-approved list of items which may (or may not) cause cancer is so voluminous (over 900 as of 2025), many merchants simply post or affix a product-specific disclaimer as a way to avoid official harassment or burdensome litigation.

For those shared formative experiences, Californians must thank the 4.4 million voters who enacted Proposition 65 in 1986. That ballot measure initiative, ubiquitously known as “Prop 65,” provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.” The voters, in their wisdom, provided real teeth to Prop 65. Violators can be sued not just by state and local officials, but by private parties who can “recover a quarter of the civil penalty imposed and reasonable attorneys’ fees.” The liability? Twenty-five hundred dollars per violation, per day.

A recent federal district court decision, California Chamber of Commerce v. Bonta, however, set aside the Prop 65 disclaimer as it applies to dietary acrylamide. While hardly a household word, acrylamide has almost certainly been in your household. As Dr. Adam E. Carroll of the Indiana University School of Medicine has trenchantly observed, it is not “an industrial additive. It’s a chemical that is made almost any time you cook starches at temperatures above 250 degrees Fahrenheit. You can make acrylamide from frying, baking, broiling or roasting — essentially anything that isn’t boiling or microwaving.”

In fact, acrylamide can form in coffee. And perhaps unsurprisingly, it “is found in about 40 percent of the calories consumed by people in the United States.” Moreover, as the California Chamber of Commerce district court noted, “the FDA stated in 2024 that it is ‘not clear exactly what risk acrylamide poses to humans’ noting that ‘[i]n research studies, high levels of acrylamide caused cancer in laboratory animals, but the levels of acrylamide used in these studies were much greater than those found in human food.’”

Yet, despite this (at best) scientific uncertainty, one of the most anodyne statements that California would have forced businesses to post would have read: “WARNING: Consuming this product can expose you to acrylamide. The International Agency for Research on Cancer has found that acrylamide is probably carcinogenic to humans. Many factors affect your cancer risk, including the frequency and amount of the chemical consumed.”

In the abstract, Prop 65 is perfectly understandable. Nobody wants to blindly rush into risking cancer or birth defects, and certainly nobody wants to encourage the use of cancer-causing products. As Omri Ben-Shaher and Carl Schnieder succinctly put it in their 2014 book, More Than You Wanted To Know: The Failure of Mandated Disclosure, these “disclosures seek more to persuade than inform…Proposition 65 disclosures warn of toxic substances in products to deter producers from using them.” Acrylamide disclaimers, however, are precisely the sort of junk disclosure that undermines the persuasiveness of the Prop 65 disclaimer regime.

By suggesting that something which may not cause cancer definitely (or “probably”) causes cancer, the government has managed to both signal (1) that producers should tell consumers a common product might kill them and (2) made a mockery of the disclaimer regime’s actual intent by doing so without sufficient evidence to back itself up. As a result, thanks to the barrage of Prop 65 disclaimers festooning products and shelves since 1986, Californians likely believe everything causes cancer, with the practical upshot that they may act as if nothing causes cancer.

Fortunately, the district court, building on the Ninth Circuit’s 2023 decision in National Association of Wheat Growers v. Bonta, applied First Amendment doctrine that forbids the government from imposing a self-defeating and speculative compelled speech regime. The Wheat Growers case reinforced the foundational rule that “in the context of protected speech, the First Amendment’s guarantee of freedom of speech makes no distinction of ‘constitutional significance’ ‘between compelled speech and compelled silence.’” That is to say, the First Amendment does not merely protect you from the government restraining your speech, it cannot, without showing a genuine need, give you a script to obediently read either. In the context of commercial speech, that ought to mean that, generally, the government may only “compel[] speech to prevent consumer deception” or extraordinarily narrow similar circumstances.

Here, ironically, the risk of consumer deception, at least as applied to acrylamide, was carried out on the face of the Prop 65 disclaimer itself. Thankfully, the district court recognized that the Constitution stands as a bulwark against forcing private actors to mouth what may amount to nothing more than state-backed misinformation. If the State of California wants to run a mass messaging campaign against the consumption of acrylamide (and by extension, uh, coffee) on the precautionary principle, it is free to do so through official channels of communication. It cannot hijack civil society for such ventures.