Our Website Uses Cookies
We and the third parties that provide content, functionality, or business services on our website may use cookies to collect information about your browsing activities in order to provide you with more relevant content and promotional materials, on and off the website, and help us understand your interests and improve the website.
For more information, please contact us or consult our Privacy Notice.
Your binder contains too many pages, the maximum is 40.
We are unable to add this page to your binder, please try again later.
This page has been added to your binder.
- Home
- News and Insights
- Insights
- Five Things You Need to Know About OEHHA’s Proposed Rule Exempting Acrylamide-by-Cooking From Prop 65
Five Things You Need to Know About OEHHA’s Proposed Rule Exempting Acrylamide-by-Cooking From Prop 65
August 11, 2020, Covington Alert
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:
- 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).
- 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.
- 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.
- 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.
- 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.
If you have any questions concerning the material discussed in this client alert, please contact the following.
May 21, 2020, Covington Alert
Slack-fill class actions have been proliferating. The vagaries of the definition of “nonfunctional slack fill” have made food, candy, and cosmetics manufacturers easy prey. But after the Second Circuit’s May 11 decision in Critcher v. L’Oréal USA Inc., slack-fill claims against cosmetics manufacturers will be harder to bring. Courts are now more likely to find ...
May 14, 2020, Covington Alert
On May 7, 2020, the First Circuit handed down Lee v. Conagra Brands, Inc., which reinstates a previously-dismissed complaint alleging that Wesson Oil labeled “100% Natural” is plausibly misbranded because it contains corn oil made with GMOs. Until now, GMO class actions have had a mixed reception in the district courts. Lee is the first circuit court decision to ...
October 18, 2019, Covington Alert
Vanilla-flavored yogurt, ice cream, almond and soy milk have all been caught in the crosshairs recently, targeted by more than a dozen class action lawsuits filed since May 2019 by the same New York-based law firms Sheehan & Associates and Reese LLP.