Beginning January 1, 2023, California will recognize a unique new “safe harbor" warning that can be used by manufacturers, distributors and retailers for food products that could pose a risk of exposure to acrylamide - a chemical regulated under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65. Although the warning is not mandatory, if it is clearly and reasonably conveyed, then the party providing the warning will have a regulatory defense to liability under Proposition 65.
As background, acrylamide is a chemical that can be formed when certain foods (particularly those containing complex carbohydrates) are cooked. Typical examples of such foods include but may not be limited to breads, cookies, chips, cakes, tortillas, french fries, etc.
Previously, the State has released acceptable warnings that note the regulated chemical at issue in the product is “known to the State” to cause, cancer, birth defects, or in some cases, both. For the last several years, the issue of whether acrylamide is a known carcinogen has been the subject of litigation. While that litigation is not resolved, the State wanted to provide parties with a safe harbor from ongoing Proposition 65 claims (alleging a failure to provide a clear and reasonable warning as required by the law). As a result, the California Office of Environmental Health Hazard Assessment (OEHHA) promulgated a new regulation specific to acrylamide that will provide a clear and reasonable warning to consumers about the acrylamide risk, emphasizing only that acrylamide is “probable” carcinogen.
The new safe harbor warning is displayed below:
This regulatory development may provide great assistance to businesses trying to avoid costly claims and potential litigation. Since January 1, 2021, the State Attorney General’s office reports 1,420 “notices of violation” being issued relative to acrylamide in food products. Businesses now will have the option to provide a safe harbor warning to ensure compliance with Prop 65 if they sell food products that may cause significant exposures to acrylamide.