Food has become a bigger and bigger target for enforcement under Prop 65 over the last few years, and acrylamide in particular has been the subject of scrutiny by both the California Office of Environmental Health Hazard Assessment (OEHHA) and in pending litigation. You can find our prior post on this subject here.

Now, OEHHA has proposed a new tailored warning for exposures to acrylamide from food. The tailored warning would read:

This rulemaking proposes to add the following new subsection to Section 25607.2:

(b) A warning for food exposures to acrylamide meets the requirements of this subarticle if it is provided: (i) in accordance with subsection (a), or, (ii) via one or more of the methods specified in Section 25607.1 and includes both elements (1) and (2) below.

(1) The words “CALIFORNIA WARNING:” in all capital letters and bold print.

(2) The words, “Consuming this product can expose you to acrylamide, a probable human carcinogen formed in some foods during cooking or processing at high temperatures. Many factors affect your cancer risk, including the frequency and amount of the chemical consumed. For more information including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide.”

While this proposed rulemaking may be OEHHA’s attempt to address disputes over labeling within the food industry, an obligation to add a specialized warning is unlikely to quell industry pushback or litigation. In a new pending case, the California Chamber of Commerce has argued that the existing safe harbor warnings for exposure to acrylamide in foods are overbroad, false and misleading, and constitute a violation of First Amendment rights. See Cal. Chamber of Commerce v. Bonta, No. 2:19-cv-02019-KJM-JDP (E.D. Cal. Mar. 30, 2021).

OEHHA’s proposed specialized warning may not make it easier for a business to determine whether a Prop 65 warning is necessary, nor would it necessarily decrease the amount of citizen notices of violation. Aside from those legal risks, labeling food with a consumer warning which states that consumption can cause cancer presents potential business and PR risks for a food company.

The proposed regulation is not yet effective and there is still an opportunity to comment. The public comment period closes November 8, 2021.

In another industry, OEHHA has proposed modification of the text for its proposed rulemaking, which created a tailored safe harbor warning for cannabis (marijuana) smoke and THC exposures. We wrote about the enforcement period beginning for THC and cannabis following its listing on the Prop 65 chemicals list back in January of 2021. Shortly thereafter in March 2021, OEHHA proposed tailored safe harbor warnings for THC and cannabis smoke.

In response to public comments received on the tailored warnings, OEHHA has now included a delayed effective date for the regulations and a sell-through period for items previously labeled with compliant warnings. The modifications plan to provide a one year delayed effective date to allow businesses to transition to the new warnings and provide an unlimited sell-through period for products manufactured prior to the effective date of the regulation labeled using the general safe harbor warning. The comment period closed on October 8, 2021.

Considerations for potentially labeling CBD products with a specialized warning raises many of the same business concerns as food that may cause an exposure from acrylamide. In the very least, however, the proposed delay of the effective date will give those in the cannabis industry the opportunity to carefully review its Prop 65 compliance program and seek out legal advice on any labeling updates necessary for selling into the California market.