On August 4, 2020, the Office of Environmental Health Hazard Assessment (OEHHA), the lead agency that implements California’s Proposition 65 (Prop 65), proposed to adopt a new regulation that would significantly change the warning requirements for listed chemicals formed by the cooking or heat processing of foods. The proposed regulation would provide that intake of such chemicals does not represent an exposure for the purposes of Prop 65 if the concentrations are reduced to the lowest level currently feasible using appropriate quality control measures. The proposal would establish maximum concentration levels for acrylamide in specific foods that are deemed by OEHHA to be the lowest levels currently feasible. Concentrations of the chemical at or below the level identified for the specified products would not require a warning.
It is noteworthy the proposed regulation is published at a time when a new wave of Prop 65 challenges are targeting acrylamide in food. In the past three months alone, private litigants have filed close to one hundred 60-day notices indicating their intent to sue food companies for acrylamide. This translates to about one Prop 65 notice filed every day in California for acrylamide in food. In its Initial Statement of Reasons, OEHHA stated the proposal is intended to (1) reduce exposures to listed chemicals present in food due to the human activities of cooking or heat processing, (2) provide warnings for avoidable exposures to acrylamide, and (3) safeguard the effectiveness of those warnings.
The public can request a hearing on the proposed changes and the request must be received no later than September 21, 2020. Written comments to the proposed regulation are due on October 6, 2020.