Proposition 65 is a law in California that requires all products sold in the state (including food) to have a warning label if the use or consumption of a product causes exposure to a list of over 900 chemicals, as compiled and maintained by the state. In addition to lead, mercury, cadmium, and arsenic, the list contains acrylamide, a chemical that naturally forms in certain types of food when it is exposed to high-temperature cooking such as frying, toasting, or baking.
Sophia Castillo, an attorney at Downey Brand LLP, spoke during an SFA webinar last week about the foods that typically contain acrylamide, the regulations surrounding it, and strategies for food makers to avoid litigation.
Acrylamide is found in foods made from plants, such as potato products, grain products, nuts, and coffees. Specifically, the chemical forms in toasted, roasted, and crunchy foods like french fries, cereal, cookies, crackers, waffles, and tortilla chips. It does not form, or forms in lower levels, in dairy, meat, and fish, said Castillo.
The way a food is prepared can impact the levels of acrylamide found in a product. For example, roasting potato pieces causes less acrylamide formation, followed by baking whole potatoes. Boiling and microwaving potatoes with skin on do not produce acrylamide at all. Bread toasted to a lighter brown color contains less acrylamide than bread toasted to a dark brown color. Generally, more acrylamide accumulates when cooking is done for longer periods or at higher temperatures, according to Castillo.
Though dozens of studies have failed to connect cancer in humans to a diet of food containing acrylamide, according to Castillo, if consumption of a food totals 0.2 micrograms per day for consumers, it is required to bear a Prop 65 Warning Label for cancer. This is a relatively low level for Prop 65 warning thresholds, said Castillo. In addition, if consumption of a food totals 140 micrograms per day for consumers, the label must also include a reproductive harm warning.
Typically, plaintiffs initiate hundreds of cases a year related to foods containing acrylamide, alleging that a cancer warning is needed. Currently, there are over 40 acrylamide cases being litigated in courts, Castillo noted.
However, the number of cases went down last month due to a recent ruling from the United States District Court for the Eastern District of California, she said. In March, the California Chamber of Commerce filed a suit challenging the constitution of cancer warning labels due to a lack of scientific evidence. A judge granted a preliminary injunction, barring the filing of new lawsuits alleging that a cancer warning is needed for foods that contain acrylamide.
In addition, in 2019, the coffee industry was able to carve out an exception in the law, exempting it from a Prop 65 cancer warning. Castillo notes that other industry efforts to curb acrylamide lawsuit abuse include a regulation proposed by California’s Office of Environmental Health Hazard Assessment that would establish maximum concentration levels for acrylamide in specific foods that are deemed by the agency to be the lowest levels currently feasible. A public comment session is currently open to companies who want to weigh in on the regulation.
Despite these regulatory movements, companies should still be vigilant around this issue, recommended Castillo. The use of a label on all products that contain acrylamide cuts off all claims and litigation possibilities. However, if a company doesn’t want to include a label, it should take the following steps to protect itself:
• Determine how much acrylamide is in your product
• Ask yourself if changing the cooking or preparation process reduce the level?
• Will the OEHHA proposed regulation help you? If so, prepare a public comment.
• Remember, the preliminary injunction against lawsuits buys you some time, but not forever. Castillo said that it is wise to use that extra time to figure out a compliance system in the event that the case is reversed.
Related: Regulatory Concerns Top of Mind for 2021; Prop 65 Update: Enhanced Activity During the Pandemic.