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⚠️ WARNING! California Announces Proposed Amendment to Proposition 65 Warning Requirements for Acrylamide

Proposition 65 requires businesses to provide warnings to Californians about significant exposures to chemicals it has determined to cause cancer, or 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, including detailed warning requirements, for goods imported into California.
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Acrylamide is a controversial chemical on the Proposition 65 list because it is a byproduct that can form in some foods during high-temperature cooking processes, such as frying, roasting, grilling, and baking. It is produced as the result of a reaction between two common food components: asparagine, an amino acid that is naturally present in many foods and is also formed by the human body, and a reducing sugar such as glucose or fructose. Common sources of acrylamide in the human diet include breakfast cereals, crackers, cookies, roasted coffee, French fries, potato chips, and roasted nuts.
 
On September 17, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a proposed amendment to the current acrylamide warning regulations under Proposition 65. The amendment would include a new subsection to the current regulation Section 25607.2 of Title 12 of the California Code of Regulations. The proposed amendment would not alter the current acrylamide warning under Section 25607.2(a), but would offer alternative language. Below is a side-by-side comparison of the current warning for acrylamide exposures and the proposed warning option.
 

Current Acrylamide Warning
[Section 25607.2(a)]
Proposed Alternative Acrylamide Warning [Section 25607.2(b)]
WARNING: Consuming this product can expose you to acrylamide, which is known to the State of California to cause cancer and birth defects, or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food CALIFORNIA WARNING: 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

 
OEHHA describes this proposed alternative warning as one that would not alter the mandatory requirements on businesses that are subject to Proposition 65 but instead would just offer businesses optional safe harbor warning content for significant acrylamide exposures from food. Note that both forms of the warning are completely voluntary, and a business may provide a warning using any other language it deems “clear and reasonable,” but it may need to defend that choice of language in the event an enforcement action is filed against it.

For consumers, the alternative proposed warning for acrylamide provides added detail absent from the current warning to further inform the consumer, such as advising that acrylamide is a “probable human carcinogen.” (Emphasis added.) The proposed alternative warning also clarifies that acrylamide is formed in some foods during cooking or processing at high temperatures – in other words, it is not intentionally added by the manufacturer of the food product. Further, the proposed additional warning notes that “[m]any factors affect your cancer risk, including the frequency and amount of the chemical consumed.” This clarifying language, if implemented, would offer businesses flexibility in using an alternative warning that educates consumers on the potential health risks of consuming acrylamide, a byproduct of the cooking and processing process, while informing customers that many factors affect cancer risk.
 
OEHHA is considering public comments on this matter which must be submitted electronically through their website before November 8, 2021. Additionally, members of the public may request a virtual hearing to voice concerns regarding the proposed amendment and these requests should be submitted no later than October 25, 2021.

Takeaways

  • This proposed language change is described as giving businesses options to decide how best to warn consumers about possible acrylamide exposures occurring from food consumption.
  • A business that already uses warning language set forth in Section 25607.2(a) need not alter existing warnings for its products because the warning it provides will continue to be deemed “clear and reasonable” as required by Proposition 65.
  • Anyone who is interested in making a public comment or requesting a public hearing should visit OEHHA’s website to be heard before this proposed amendment to the existing regulation is voted on for approval.

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