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Post Foods, LLC v. Superior Court

Court of Appeal of California, Second Appellate District, Division One

July 16, 2018, Opinion Filed



 [**644]  CHANEY, J.—Petitioners Post Foods, LLC, General Mills, Inc., General Mills Sales, Inc., and Kellogg USA, Inc., petition for a writ of mandate directing the superior court to vacate its June 26, 2017 order denying their motion for summary judgment and issue an order granting the motion. We issued a stay pending this court's resolution of the petition and an order to show cause why a writ of mandate should not issue.

Real party in interest Dr. Richard Sowinski's complaint alleges that Petitioners' breakfast cereals were required by California's Proposition 65 to display cancer and reproductive harm warnings because they contain acrylamide. Petitioners contend such warnings on cereals are preempted by federal law because they would pose an obstacle to federal policy objectives to increase Americans' [***2]  consumption of whole grains. In support, Petitioners cite to numerous federal statutes establishing that policy, and Food and Drug Administration (FDA) letters to California regulators cautioning against Proposition 65 warnings on cereals because they could mislead consumers and cause them to avoid whole grains, resulting in health detriments. Because we agree that Dr. Sowinski's Proposition 65 claim is preempted by federal law, we grant the petition and direct the superior court to vacate its order denying Petitioners' motion and enter a new and different order granting the motion.


Acrylamide has been produced artificially since the 1950's for industrial purposes, including the manufacture of various polymers, cement, and for wastewater treatment. Acrylamide has been known to pose health risks for some time. It was added to Proposition 65's list of chemicals known to cause cancer in 1990, and later was determined to cause reproductive harm in animal test subjects.

In April 2002, Swedish researchers discovered that acrylamide is generated naturally when carbohydrate-rich foods are baked, roasted, fried, or deep fried. In particular, French fries, potato [***3]  chips, crackers, pretzel-like snacks, cereals, and brown breads “tend to have the highest levels of [acrylamide].” A 2010 Environmental Protection Agency study noted, however, that “since [*282]  [acrylamide] appears to form from standard cooking methods like baking, frying, and roasting, it has been in the human diet for many thousands of years.”

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25 Cal. App. 5th 278 *; 235 Cal. Rptr. 3d 641 **; 2018 Cal. App. LEXIS 631 ***; 2018 WL 3424800

POST FOODS, LLC, et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; RICHARD SOWINSKI, Real Party in Interest.

Notice: As modified Aug. 15, 2018.


Subsequent History: Modified and rehearing denied by Post Foods, LLC v. Superior Court, 2018 Cal. App. LEXIS 726 (Cal. App. 2d Dist., Aug. 15, 2018)

Review denied and ordered not published by Post Foods v. Superior Court, 2018 Cal. LEXIS 8617 (Cal., Oct. 31, 2018)

Prior History:  [***1] ORIGINAL PROCEEDING; petition for writ of mandate, No. BC516747, Kenneth R. Freeman, Judge.

Disposition: Petition granted.


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Civil Procedure, Judgments, Summary Judgment, Burdens of Proof, Appeals, Summary Judgment Review, Standards of Review, Constitutional Law, Supremacy Clause, Federal Preemption, Business & Corporate Compliance, Governments, Agriculture & Food, Distribution, Processing & Storage, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof