Five Things You Need to Know About OEHHA’s Proposed Rule Exempting Acrylamide-by-Cooking From Prop 65

On August 4, 2020, OEHHA, the California agency in charge of Prop 65 announced a proposed regulation that, when final, would exempt from Prop 65 products containing listed chemicals introduced through cooking or heat-processing. Acrylamide has been the most widely targeted chemical created through cooking, but the proposal would also provide a mechanism for relief for foods containing other such chemicals like furfuryl alcohol. OEHHA is accepting comments on the proposal until October 6, 2020. These are the five things you need to know about the proposed regulation:

1. Who Should Care?
   
   The proposed regulation should come as a relief to manufacturers and retailers of French fries, potato chips, breads, fried and baked snack foods, roasted or cooked (including canned) vegetables, nuts, cereals, crackers, cookies, and even prune juice. In addition, although the current proposal affects only acrylamide, it creates a structure by which future rulemaking could exempt from Prop 65 other constituents formed through cooking (e.g., furfuryl alcohol). 
   
   
2. What Does the Proposed Regulation Do?
   
   The proposed regulation would treat products containing acrylamide that has been introduced by cooking or heating as “naturally occurring” and therefore exempt so long as the concentrations are below the levels set forth in the tables accompanying the proposed regulation. The regulation would not apply to parties to an existing court-ordered settlement or final judgment.
   
   
3. The Proposed Regulation Would End the Litigation Storm
   
   Prop 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing Californians to listed chemicals. In 1990, the California Office of Environmental Health Hazard Assessment (OEHHA) added acrylamide to the list after studies showed it produced cancer in laboratory rats and mice.
   
   That opened the floodgates to “gotcha” litigation, with litigants sending 60-day demand letters over trace amounts of acrylamide. According to the California Attorney General’s website, 825 “notice letters” have been filed over acrylamide and, collectively, companies have paid scores of millions of dollars in settlements, most of it to private bounty hunters. The proposed regulation should stem the tide of these lawsuits.
   
   
4. Coffee Led the Way
   
   In March 2018, following trial and ten years of litigation, a Los Angeles judge required 90 coffee retailers to provide cancer warnings because of trace amounts of acrylamide introduced by roasting the coffee beans. In June 2019, OEHHA adopted a final regulation eliminating that warning requirement. This proposed regulation, in effect, extends the exemption for coffee to other products.
   
   
5. What Is Acrylamide?
   
   Acrylamide is a chemical that naturally forms in plant-based foods that are rich in carbohydrates. It results from “Maillard” or “browning reaction” when the amino acid asparagine and a sugar combine at temperatures higher than 248°F. This form of acrylamide occurs in such foods as French fries, potato chips and other fried or baked snack foods, coffee, roasted asparagus and other roasted vegetables, canned sweet potatoes and pumpkin, canned black olives, roasted nuts, prune juice, breakfast cereals, crackers, cookies, breads, and toast. Foods that have been boiled or steamed do not contain acrylamide.

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