California is inviting public comments on a proposed regulation that would exclude the need to place warnings on many cooked, baked or fried food items that may expose individuals to acrylamide, a chemical the State has deemed to be a carcinogen.

California’s Safe Drinking Water and Toxic Enforcement Act (aka “Proposition 65”) prohibits businesses from knowingly and intentionally exposing consumers to over 900 chemicals that have been listed as “known to the state to cause cancer or reproductive toxicity” (without first giving a clear and reasonable warning to the consumer).  Acrylamide is regulated under this law as a carcinogen.

Acrylamide can be formed by the cooking or heat processing of many foods, including French fries, potato chips, other fried and baked snack foods, roasted asparagus, canned sweet potatoes and pumpkin, canned black olives, roasted nuts, roasted grain-based coffee substitutes, prune juice, breakfast cereals, crackers, some cookies, bread crusts, and toast.

The formation of acrylamide through cooking is at times unavoidable.  However, acrylamide concentrations can be reduced optimizing the type and timing of fertilizer use in the growing of certain food products, changing food storage conditions, and / or reducing cooking duration and temperature.

Taking this into account, California’s Office of Environmental Health Hazard Assessment (OEHHA) has released a proposed regulation that would create an exception from the warning requirement for acrylamide that is unavoidably created during cooking or heat processing of food, and that have been reduced to the lowest level “currently feasible.”  OEHHA believes this proposal will provide more certainty to businesses, incentivize them to lower acrylamide concentrations by employing more advanced control measures, encourage consistency and predictability, and ensure that warnings are given only for the foods causing the highest levels of exposure.  However, there may be upfront costs for certain stakeholders that have to change their business practices to achieve these optimized conditions.

The proposed exclusion is “prospective” only.  Parties that have already entered into Court approved settlements regarding acrylamide warnings based on certain agreed upon acrylamide concentrations will not be impacted by this new regulation, if promulgated.

Proponents of the proposal argue the exclusion reduces the risk of unnecessary “overwarning,” while critics are concerned: a) about ambiguities in what constitutes “feasible” controls; and b) that the public will not be given relevant health information prior to being exposed to foods that could increase their risk of cancer.

Public comments concerning this proposed action must be received by OEHHA by October 6, 2020.