California has approved a new, alternative “Safe Harbor” warning label for foods containing acrylamide, a naturally-occurring byproduct that occurs during high-heat cooking. Acrylamide is a substance that forms through a natural chemical reaction in certain plant-based foods during high-temperature cooking, and can be found in foods like potato chips, bread, grilled vegetables, nuts, crackers, and olives. There is conflicting evidence regarding the risk it poses to humans. While studies exposing laboratory rats and mice to high levels of acrylamide have been shown to produce cancer, other studies have found no consistent evidence that dietary acrylamide increases the risk of cancer in humans.

The California Office of Environmental Health Hazard Assessment (OEHHA) has made clear that it intends to modify and/or limit the use of so-called “Short-Form” warnings required by Proposition 65.

Bleach, hand sanitizer, single use plastic bags all were necessary to human health and safety during the pandemic. Will they be blackballed again once there is a cure, or will we stick by our old tried and true friends?

Acrylamide is a chemical that results, inter alia, when foods are browned in cooking, such as when foods are baked, fried, or roasted. The State of California has determined that consuming acrylamide increases the risk of cancer. That finding has resulted in the Office of Environmental Health Hazard Assessment (OEHHA) requiring warnings, pursuant to Proposition 65, of that hazard (although the amounts that trigger the warnings are somewhat in flux).

Acrylamide is a chemical that results, inter alia, when foods are browned in cooking, such as when foods are baked, fried, or roasted. The State of California has determined that consuming acrylamide increases the risk of cancer. That finding has resulted in the Office of Environmental Health Hazard Assessment (OEHHA) requiring warnings, pursuant to Proposition 65, of that hazard (although the amounts that trigger the warnings are somewhat in flux).

As a result of the frequency of its occurrence in food products, acrylamide has become a favored target for the private law firms that bring cases against companies for failing to provide Proposition 65 mandated warnings. In 2020, there were some 453 Notices of Violation involving alleged acrylamide-related violations served, many of them naming multiple violators. In the first quarter of 2021 alone, there were 109 such Notices.

California’s Safe Drinking Water and Toxic Enforcement Act of 1986 makes it unlawful for a business with ten or more employees to expose a person in California to a chemical “known to the State of California to cause cancer” or “reproductive harm” without providing a clear and reasonable warning.

It received plenty of coverage in the national press last March when Los Angeles Superior Court Judge Elihu Berle issued his tentative ruling in a recent Proposition 65 case against roasters and sellers of coffee that would effectively require a clear and reasonable warning that brewed coffee contains a chemical known by the state of California to cause cancer, because coffee contains acrylamide, a listed carcinogen. This had far greater potential than just a judgment against coffee companies. The private enforcer / bounty hunters might well argue that any business with ten or more employees that served coffee—whether a restaurant, a coffee shop, or an automobile dealer with a coffee-serving lounge—would be required to warn coffee drinkers that they were being exposed to a chemical known to the State of California to cause cancer.