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Proposition 65 – OEHHA Proposes Safe Harbor Concentrations and Blanket Protections for Exposures to Acrylamide and Other Listed Chemicals in Cooked or Heat Processed Foods

On August 4, 2020, the Office of Environmental Health Hazard Assessment (OEHHA), the lead agency that implements Proposition 65 and has the authority to promulgate and amend regulations, released a proposed regulation providing that intake of listed chemicals formed by cooking or heat processing foods would not represent an exposure for the purposes of Proposition 65 if the concentrations are reduced to the lowest level currently feasible. The proposed regulation would also establish maximum concentration levels for acrylamide in specific foods that are deemed by OEHHA to be the lowest levels currently feasible. Concentrations of acrylamide at or below the level identified for the specified products would not require a warning. Public comments concerning this proposed action must be received by OEHHA by October 6, 2020.

Proposition 65 prohibits a person in the course of doing business from knowingly and intentionally exposing any individual to a chemical that has been listed as known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual. An exemption from the warning requirement is provided when the exposure is below established safe harbor levels.

Currently, there are regulatory exceptions from the warning requirement for exposures to naturally occurring chemicals in foods, specific concentrations of naturally occurring arsenic in rice, and for certain exposures to listed chemicals in water or air. The proposed regulation would create an additional exception from the warning requirement for listed chemicals that are unavoidably created in foods during cooking or heat processing and that

WARNING: New Proposition 65 Warning Requirements Take Effect August 30, 2018

Retailers and manufacturers should take steps now to ensure they are compliant with the new California Proposition 65 warning regulations that take effect on August 30, 2018.

Proposition 65 prohibits retailers and manufacturers from knowingly and intentionally exposing California consumers to a chemical known to the State of California to cause cancer or developmental or reproductive harm without first providing a “clear and reasonable warning.”  (Cal. Health & Safety Code § 25249.6.) The regulations provide examples of “safe harbor” warnings that are deemed to be clear and reasonable under the new amendments. Notably, the use of the specific “safe harbor” warnings included in the regulations is not actually required. Retailers and manufacturers can use any clear and reasonable warning; however, using the examples provided ensures that the warning is sufficient.

As we previously reported, amendments to the warning regulations were issued in August 2016. The 2016 and the more recent November 2017 amendments change the form and content of the “safe harbor” warnings. The amendments also clarify who has responsibility for providing warnings.

For products manufactured before August 30, 2018, retailers and manufacturers can choose whether to rely on the current or new safe harbor warnings, as both are deemed sufficient under the regulations.  Products manufactured after August 30, 2018, however, should include the new warning in order to ensure compliance. Parties to existing court-approved consent judgments can continue to provide warnings that comply with those orders.

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The new regulations specify that safe harbor warnings for consumer

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