Prop. 65 Warnings for Acrylamide in Food Not Backed by Current Scientific Data, Suit Argues

If you want to comply with Proposition 65 on Thanksgiving, you will likely need to add an acrylamide cancer warning to pretty much every dish you serve. Roasted sweet potatoes? Yes, it needs a warning. Bread stuffing? That too. Baked pies? Absolutely. These foods—including many others, such as roasted asparagus, black olives, toasted bread, and cereal—contain traces of acrylamide. Since humans have been eating many of these foods for thousands of years, one has to ask, does roasted asparagus really cause cancer?

In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and consumer product attorney Trenton Norris discuss acrylamide and the CalChamber’s efforts to stop Prop.65 overwarning about acrylamide in food.

What Is Acrylamide?

Acrylamide is a byproduct chemical that is produced when heating some food during high-temperature cooking processes (it is not an added chemical). In 2002, it was discovered that acrylamide was present in a large percentage of the food supply. Although acrylamide is a known carcinogen in lab animals, dozens of long-term studies do not link the chemical to cancer in humans, Norris explains.

“The epidemiological data is very strong that indeed it does not cause cancer to humans, that, in essence, those people who consume more acrylamide are not at greater risk of cancer than those people who consume lesser amounts of acrylamide,” he tells Frank.

Currently, acrylamide is a Proposition 65 listed chemical. To comply with the law, businesses are required to label any food products with trace amounts of the chemical as causing cancer. The problem, Norris argues, is that the scientific evidence does not prove the ingredient causes cancer in humans.

“We see a real disconnect between Proposition 65 and its listing, which is based on animal data, and Proposition 65 and its warning, which is directed…at humans and human food,” he says.

CalChamber v. Becerra

In October 2019, the CalChamber filed a lawsuit to stop the multitude of Proposition 65 warnings for the presence of acrylamide in food and beverages. The complaint for declaratory and injunctive relief was filed against California Attorney General Xavier Becerra, who is responsible for enforcing Proposition 65, in  the U.S. District Court, in the Eastern District of California.

The complaint does not challenge the listing of acrylamide as a Proposition 65 chemical; rather the suit challenges whether the state can require a warning of acrylamide in human food, since the scientific evidence shows that that assertion is not purely factual and is controversial, Norris explains.

To date more than 500 notices on acrylamide have been sent to businesses, with many businesses having been sued by private enforcers. To avoid lawsuits, businesses and manufacturers are labeling all food products with trace amounts of acrylamide with the Proposition 65 consumer warning, he tells Frank.

“On behalf of the business community, the Chamber has decided that this issue needs to get resolved efficiently and in one lawsuit, which is the [California Chamber of Commerce] v. Becerra suit,” Norris says.

So, Does Coffee or Roasted Asparagus Cause Cancer?

The Federal Food and Drug Administration agrees that people should not alter their eating patterns based on the presence of acrylamide, Norris says. In fact, some of the foods that contain acrylamide, such as whole grain foods, have been shown to reduce the incidence of cancer.

The Problem of Overwarning

One of the debates surrounding the Proposition 65 warning requirements is the danger of overwarning.

“It’s difficult, almost impossible, to decipher a warning that truly is a warning versus a warning that doesn’t have the scientific basis to support the concern that the warning might be addressing,” Frank points out.

Norris agrees.

“Public health experts are very concerned that if there are too many warnings, people will ignore them all because they can’t sort through them entirely, and the Food and Drug Administration is very concerned about Prop. 65 warnings on food because they can have unintended consequences. People may make dietary choices that are not well-informed, where one risk is overemphasized as compared to others that may, in fact, have greater risk,” he says.

More Information

For more information on acrylamide and the CalChamber’s complaint, see:

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