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On August 4, 2020, the California Environmental Protection Agency Office of Environmental Health Hazard Assessment (OEHHA), the lead agency that implements Proposition 65, proposed a regulation that would change the warning requirements for listed chemicals formed by cooking or heat processing of foods (OEHHA 2020a). Specifically, OEHAA proposed adding Section 25505 to Title 27 of the California Code of Regulations to address chemicals, such as acrylamide, that are unavoidable when foods are cooked or otherwise heat processed. This proposed regulation is meant to deter over-warning, such that consumers can make informed decisions by distinguishing between high and low exposure potentials.

OEHHA noted in its proposal that some chemicals on the Proposition 65 list are not added in food but rather are formed by the human activity of cooking or heat processing of foods. According to the Initial Statement of Reasons for the proposal, the regulation would provide that intake of these chemicals does not represent an exposure if the concentrations are reduced to the “lowest level currently feasible using appropriate quality control measures” (OEHHA 2020b). Therefore, while certain amounts of these chemicals are unavoidable, the level of chemical may be lowered by optimizing various practices. In the example of acrylamide, which is the only chemical addressed in the proposed rule, agricultural practices such as optimizing type and timing of fertilizer, selection, storage conditions, or handling of ingredients, as well as cooking duration and temperature may all lower the level of chemical formation. For the purposes of the proposed regulation, failing to implement feasible ways to cook or heat process food that yield reduced levels would be considered a deliberate act, as it unnecessarily increases the level of exposure to the chemical.

Further, the proposed regulation would also establish maximum concentration levels for acrylamide by food group. The proposed maximum average concentrations of acrylamide range from 50 to 350 ppb, and the maximum unit concentration levels range from 100 to 490 ppb depending on the food. In the event that a business is unable to, or chooses not to, reduce the levels of acrylamide in a product to the level adopted in the regulation, a warning would be required if the exposure exceeded the safe harbor level(s). While the Initial Statement of Reasons proposed maximum concentration levels for acrylamide only, OEHHA acknowledged that levels for other chemicals or food groups may be adopted later.

In the Initial Statement of Reason, OEHHA stated that the regulation addresses the problems of how to 1) reduce exposures to listed chemicals present in food due to the human activities of cooking or heat processing, 2) provide warnings for avoidable exposures to acrylamide, and 3) safeguard the effectiveness of those warning. According to OEHHA, the regulation would achieve those objectives by incentivizing food manufacturers and producers to reduce listed chemicals formed through cooking or heat processing to the “lowest level currently feasible, while continuing to require warnings for such chemicals in food when present at levels above the lowest levels currently feasible” (OEHHA 2020b).

Public comments concerning this proposed regulatory action must be received by OEHHA no later than October 6, 2020. 

Cardno ChemRisk has assisted companies in understanding potential product exposures and risks. Our scientists have evaluated diverse scenarios for Proposition 65 compliance, ranging from a single product to entire product lines. For more information regarding Cardno ChemRisk’s Proposition 65 capabilities, please contact Ms. Jennifer Bare or Dr. Ania Urban.