New Modifications To OEHHA’s Proposed Rule Offer Additional Flexibility

Husch Blackwell LLP

Last summer the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, to create an exception from the warning requirement for listed chemicals that are formed when food is cooked or heat processed. In essence the proposed rule would treat food products that contain acrylamide as a result of cooking or heating as “naturally occurring” thereby relieving manufactures of the duty to warn consumers about the presence of acrylamide as long as the levels present are below the OEHHA proposed thresholds.

After undergoing a public comment period OEHHA is now requesting comments on four modifications to the proposed rule:

  • The last sentence in subsection (a) was removed to clarify that a business is not required to make any further showing of feasibility or compliance with good manufacturing practices to rely on the levels established in subsection (d).
  • The change to subsection (b) would replace the phrase “in the course of doing business,” with the phrase “otherwise responsible for an exposure to a listed chemical in a food” for clarity.
  • Also, in subsection (b) the phrase “that is different from the concentrations provided in subdivision (d)” is added for purposes of clarity.
  • In subsection (d)(1), the reference to roasted almond butter and prune juice was removed for further review and possible inclusion in a future rulemaking.

While the majority of the modifications serve primarily to provide additional clarity OEHHA made two notable changes: first, the modified language provides additional flexibility by allowing food manufactures to establish alternative concentrations that are different from those specified in subsection (d); second OEHHA removed both roasted almost butter and prune juice from the included food groups. Almond consumption in the US has been rising steadily for the past fifteen years and as a result this modification in particular could generate some controversy.

Written comments concerning the modifications must be received by OEHHA no later than May 7, 2021.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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