Last summer the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, to create an exception from the warning requirement for listed chemicals that are formed when food is cooked or heat processed. In essence the proposed rule would treat food products that contain acrylamide as a result of cooking or heating as “naturally occurring” thereby relieving manufacturers of the duty to warn consumers about the presence of acrylamide as long as the levels present are below the OEHHA proposed thresholds.

After undergoing a public comment period OEHHA is now requesting comments on four modifications to the proposed rule:

  • The last sentence in subsection (a) was removed to clarify that a business is not required to make any further showing of feasibility or compliance with good manufacturing practices to rely on the levels established in subsection (d).
  • The change to subsection (b) would replace the phrase “in the course of doing business,” with the phrase “otherwise responsible for an exposure to a listed chemical in a food” for clarity.
  • Also, in subsection (b) the phrase “that is different from the concentrations provided in subdivision (d)” is added for purposes of clarity.
  • In subsection (d)(1), the reference to roasted almond butter and prune juice was removed for further review and possible inclusion in a future rulemaking.

While the majority of the modifications serve primarily to provide additional clarity OEHHA made two notable changes: first, the modified language provides additional flexibility by allowing food manufactures to establish alternative concentrations that are different from those specified in subsection (d); second OEHHA removed both roasted almost butter and prune juice from the included food groups.  Almond consumption in the US has been rising steadily for the past fifteen years and as a result this modification in particular could generate some controversy.

Written comments concerning the modifications must be received by OEHHA no later than May 7, 2021.

Contact Us

Our team assists manufacturers in determining whether their products are covered by Proposition 65, provide assistance designing complainant warnings, as well as serve as legal counsel to address a Proposition 65 60-day notices. Contact Seth MailhotMegan CaldwellAmy WachsEmily Lyons or your Husch Blackwell attorney for more information.

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Photo of Emily Lyons Emily Lyons

Emily grew up on a northern Illinois dairy farm, and now helps clients bridge the gap from farm to fork. She guides clients on complex regulatory issues as they bring dairy products, beverages, fruits and vegetables, processed foods and other agricultural goods to…

Emily grew up on a northern Illinois dairy farm, and now helps clients bridge the gap from farm to fork. She guides clients on complex regulatory issues as they bring dairy products, beverages, fruits and vegetables, processed foods and other agricultural goods to market. At the intersection of agriculture, food and environment, Emily handles compliance matters such as labeling, marketing, permitting and agency inquiries including the Food Safety Modernization Act, Pasteurized Milk Ordinance, USDA National Organic Program and bioengineered food disclosure standard, Generally Recognized as Safe status for food additives and food contact substances, and the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65).

Photo of Leah Kaiser Leah Kaiser

As an Environmental attorney with an M.S. in Environment, Ecology, and Energy, Leah is among those monitoring and researching legislation, counseling on compliance and negotiating remedies on issues including: Clean Air Act, Clean Water Act, Mine Safety and Health Act, Toxic Substance Control…

As an Environmental attorney with an M.S. in Environment, Ecology, and Energy, Leah is among those monitoring and researching legislation, counseling on compliance and negotiating remedies on issues including: Clean Air Act, Clean Water Act, Mine Safety and Health Act, Toxic Substance Control Act, and more. Leah also guides clients on renewable energy issues including matters involving the Federal Energy Regulatory Commission (FERC) and state utility commissions.