Should Food Products With Acrylamide Be Exempted From Proposition 65?

Arent Fox

Arent Fox

On October 7, 2019, the California Chamber of Commerce filed suit against the State of California requesting that a federal district court enjoin the State and private enforcers from requiring Proposition 65 warnings on foods that contain acrylamide. This litigation could have industry-wide impact for manufacturers and distributors of certain food products.

Proposition 65 requires businesses to provide warnings to Californians about significant exposures to chemicals it has determined to cause cancer, birth defects or other reproductive harm. Since California has the sixth-largest economy in the world, manufacturers of consumer goods worldwide may be liable if they fail to abide by Proposition 65 regulations.

One particularly controversial chemical on the Proposition 65 list of regulated chemicals is acrylamide, which can form in some foods during high-temperature cooking processes, such as frying, roasting, and baking, as the result of a reaction between a harmless amino acid and a sugar that are naturally present in many foods. Common sources of acrylamide in the human diet include, among others, breakfast cereals, crackers, cookies, coffee, French fries, potato chips, and roasted nuts.

Acrylamide has been the source of much litigation and debate since it was added to the Proposition 65 list in February 2011. To date, there have been more than 500 Proposition 65 Notices of Violation for alleged acrylamide in food products. Much of the litigation has focused on coffee. Because roasted coffee beans — and beverages brewed from them — contain acrylamide, technically they must be labeled to warn consumers, or the chemical must be removed or reduced to levels that Proposition 65 regulators consider safe (levels that are exceedingly low). Several large well-known coffee companies sued, but a Los Angeles Superior Court judge ruled that cups of coffee sold to consumers would fall under Proposition 65. However, after much industry pressure and statements from the US Department of Health and Human Services that acrylamide and cancer may not be linked, California’s Office of Environmental Health Hazard Assessment (OEHHA) approved a new regulation exempting coffee from Proposition 65 warnings. Thus, FDA Commissioner Scott Gottlieb issued a press release saying that “current science indicates that coffee poses no significant risk of cancer.” Breakfast cereal has also been exempted, but on different legal grounds. A California Court of Appeal held that a plaintiff’s suit seeking to require Proposition 65 acrylamide warnings on certain breakfast cereals was pre-empted by federal nutrition policies aimed at encouraging Americans to consume more whole grains.

The latest debate about acrylamide is whether the State of California and private enforcers should be precluded from requiring Proposition 65 warnings on food products containing acrylamide as the result of the cooking and baking process. On October 7, 2019, CalChamber filed suit in federal court against the California Attorney General, Xavier Becerra, to block the state from enforcing Proposition 65 warning requirements on foods unintentionally containing acrylamide as the result of the normal cooking and manufacturing process. CalChamber is arguing that Proposition 65 warnings for acrylamide constitute false and misleading messages to consumers because there is a lack of reliable scientific evidence suggesting a causal relationship between acrylamide in food products and cancer risk in humans. CalChamber further argues that Proposition 65 warnings for acrylamide will result in over-warning, which will dilute the effectiveness of warnings on other products that do pose a risk of harm to consumers.

According to the complaint, more than 461 companies have received 60-day “pre-litigation” notice of violation (NOVs) “in connection with alleged exposures to acrylamide in their food products over the past three years,” with several of those businesses being sued in connection with the NOVs. If CalChamber’s suit is successful it could be a huge win for companies whose products contain traces of acrylamide formed during the cooking process. Additionally, the success of CalChamber could help other parties potentially argue that other chemicals should be removed from the list in instances where strong scientific support for the chemicals’ inclusion does not exist.

In the meantime, businesses that manufacture or sell products in California that may contain acrylamide should continue to be vigilant in following Proposition 65 guidelines as it continues to be a major source of NOVs and litigation.

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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