On September 17, 2021, the California Office of Environmental Health Hazard Assessment ("OEHHA") proposed new, alternative safe harbor warnings for acrylamide exposures in food. OEHHA's stated goal is to reduce the potential for litigation concerning the sufficiency of warnings, because the new, optional safe harbor warnings are deemed "clear and reasonable" by the lead agency for purposes of Proposition 65.
Proposition 65, California Health and Safety Code § 25249.5 et seq. ("Proposition 65"), requires companies to provide "clear and reasonable" warnings before "knowingly and intentionally" exposing California consumers to any chemicals listed as known to the State of California to cause cancer or reproductive toxicity. There are limited exceptions to the warning requirement, including where it can be shown that exposure levels are below certain "safe harbor" threshold levels determined by the state. Proposition 65 already provides generally-worded food exposure warning safe harbor language that is deemed to be "clear and reasonable" at Sec. 25607.2.
OEHHA's actions come partially in response to concerns raised by the parties in Cal. Chamber of Commerce v. Bonta, No. 2:19-cv-02019-KJM-JDP (E.D. Cal. Mar. 30, 2021) ("CalChamber"). In the CalChamber case, the plaintiffs argue that the existing safe harbor warnings for exposure to acrylamide in foods – which state that acrylamide is "known" by the state to cause cancer – are overbroad, are false and misleading, and constitute a violation of First Amendment rights.
While the CalChamber case makes its way through the courts, and while OEHHA is still in the process of determining safe harbor levels for acrylamide in certain foods, OEHHA has proposed alternative safe harbor language that it intends to implement later this year, and which effectively softens the discussion of potential cancer risks. If the proposed regulations are finalized without change, businesses can elect to use the safe harbor warning language for acrylamide exposure in food as follows:
"Consuming this product can expose you to acrylamide, a probable human carcinogen formed in some foods during cooking or processing at high temperatures. Many factors affect your cancer risk, including the frequency and amount of the chemical consumed. For more information including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide."
We will continue to monitor developments in OEHHA's proposed new acrylamide rulemaking. In the meantime, as this issue unfolds, and based on their years of experience with Proposition 65, Foley attorneys are well-positioned to help food manufacturers, processors, and retailers craft tailored Proposition 65 warnings for acrylamide in food.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.