On August 4, 2020, the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the Proposition 65 regulations. Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing Californians to listed chemicals. These warnings are required to appear on a wide range of products, including foods.

OEHHA has proposed to create an exception from the warning requirement for listed chemicals that are unavoidably created during cooking or heat processing of food, and that have been reduced to the lowest level “currently feasible.” The proposed amendment would also establish maximum concentrations for acrylamide produced through cooking or heat processing, thereby mandating labels on foods that are above the levels deemed by OEEHA to be the lowest levels currently feasible. The development of acrylamide during cooking or baking may be unavoidable; however, food manufacturers have created methods to reduce its development in foods. The proposal suggests maximum level of acrylamide in certain foods, including almonds, bread, cookies, potato products, and prune juice.

As part of the reasoning for the proposed rule, OEHHA believes it will protect the health and welfare of the California public by incentivizing businesses to reduce levels of acrylamide in their food products, as well as avoid consumer confusion that could result from a sharp increase of warnings on foods. The U.S. Food and Drug Administration (FDA) has previously expressed concern that Proposition 65 warning on foods do more to confuse consumers than to inform them, especially if consumption of a food otherwise has health benefits. Although the current proposal only includes maximum concentrations of acrylamide, the announcement may have broader implications for other Proposition 65 listed chemicals that may develop in food during processing.

Currently, several regulatory provisions exempt foods from the warning. This includes naturally occurring chemicals in foods not avoidable by good agricultural or good manufacturing practices and specific concentrations of naturally occurring arsenic in rice. The proposed regulation would create an additional exception from the warning requirement for listed chemicals that are unavoidably created in foods during cooking or heat processing and that have been reduced to the lowest level currently feasible.

Written comments concerning this proposed regulatory action, must be received by OEHHA no later than October 6, 2020.

Written with the assistance of Natalie Sobierajski, a summer associate in the Husch Blackwell LLP Milwaukee, Wisconsin office.