Will California’s Proposed Acrylamide Warning Amendment Under Proposition 65 Pass Legal Muster?

California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed additional safe harbor warnings for products containing acrylamide in response to recent litigation questioning the constitutionality of such labeling requirements.
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Acrylamide Litigation

As we previously reported, the California Chamber of Commerce filed suit against the State of California in federal district court in 2019. They requested that the State and private enforcers be enjoined from requiring Proposition 65 warnings on foods containing acrylamide. On March 17, 2022, the Ninth Circuit agreed with the lower court and upheld a preliminary injunction that halted any Proposition 65 lawsuit alleging the need for carcinogen warnings on food containing acrylamide. This litigation is ongoing.

For a full synopsis of this litigation, please see our previous alert here.

Proposed Amendment

In response to the preliminary injunction, OEHHA drafted the existing warning regulation on acrylamide that became effective January 1, 2023. Now, OEHHA seeks to make another amendment providing additional options for safe harbor warnings.

Currently, acrylamide warnings require the following text:

  1. “CALIFORNIA WARNING:”; and
  2. “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.”

Under the new proposal, warnings must contain either:

  1. “WARNING”; or
  2. “CA WARNING”; or
  3. “CALIFORNIA WARNING.”

The warning must be followed by either:

  1. “Consuming this product can expose you to acrylamide,” or
  2. “Consuming this product can expose you to acrylamide, a chemical formed in some foods during cooking or processing at high temperatures.”

The warning must also be followed by at least one of the following:

  1. “The International Agency for Research on Cancer has found that acrylamide is probably carcinogenic to humans”;
  2. “The United States Environmental Protection Agency has found that acrylamide is likely to be carcinogenic to humans”; or
  3. “The United States National Toxicology Program has found that acrylamide is reasonably anticipated to cause cancer in humans.”

The warning may be followed by one or more of the following:

  1. “Acrylamide has been found to cause cancer in laboratory animals”;
  2. “Many factors affect your cancer risk, including the frequency and amount of chemical consumed”’ or
  3. “For more information including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide.”

Takeaways

  • Proposition 65 warning requirements for foods containing acrylamide are anything but settled. They continue to evolve, requiring constant monitoring of all developments at both the regulatory and court levels.
  • OEHHA has demonstrated that it considers comments raised by companies and other stakeholders. Businesses should submit comments to OEHHA by May 20.
  • Electronic comments can be submitted through OEHHA’s website at https://oehha.ca.gov/comments.
  • If you would like our assistance in submitting comments to OEHHA, please contact Lynn Fiorentino, Shay Potter, or your regular ArentFox Schiff attorney.

We will continue to monitor developments with the new acrylamide proposal and publish updates as developments become available.

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