As was discussed in Ahead of the Curve, here (https://scalirasmussen.com/news/2021/05/13/court-orders-cessation-of-enforcement-of-acrylamide-related-cases) and here (https://scalirasmussen.com/news/2021/08/06/update-on-proposition-65-cases-concerning-acrylamide) acrylamide, a chemical that results from roasting or cooking foods, has become perhaps the most visibly and highly litigated chemical in Proposition 65. This attention dates back to the litigation involving coffee roasters and retailers, and has since then primarily carried by the California Chamber of Commerce (see those articles noted above).
Much like glyphosate, discussed recently in Cal Biz Lit, the defendants in cases concerning acrylamide are objecting that requiring warnings are a violation of their First Amendment Rights, in that it would require them to state that the chemical in their product increases the risk of cancer, something they vehemently deny.
A further objection to the requirement of Proposition warnings has been that certain safe food products cannot be made without the development of acrylamide. In order to address that issue, last fall OEHHA published proposed “safe harbor” limits setting forth acrylamide levels specific to different prepared foods, below which a Proposition 65 warning would not be required.
Those proposed levels are applicable, inter alia, to almond butter, as well as roasted and chocolate almonds; bread, including rolls, buns and baguettes; cookies (differentiating between animal, thin, crackers and sandwich wafers); potato products (hash browns, sweet potatoes, potato puffs and french fries); prune juice and waffles.
While there has not been a noted opposition to the proposed Regulation, they have not as yet been enacted.
In the meantime, OEHHA has proposed new Warning language for those products that contain acrylamide that do exceed the proposed chemical levels. That new Section, subsection (b) to Section 25607.2 of the OEHHA regulations, would state as follows:
"b) A warning for food exposures to acrylamide meets the requirements of this subarticle if it is provided: (i) in accordance with subsection (a), or, (ii) via one or more of the methods specified in Section 25607.1 and includes both elements (1) and (2) below.
(1) The words 'CALIFORNIA WARNING:' in all capital letters and bold print.
(2) The words, “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."
Readers of this blog will note that, as with glyphosate, OEHHA is trying to avoid objections the required warnings results in a First Amendment conflict.
The public comment period for the proposed Regulation as to acrylamide is open until November 8th; the public comment period for the proposed glyphosate has just closed. We will keep you apprised as new warnings regulations come into effect.
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