CalChamber Co-Led Coalition Applauds Proposed Prop 65 Safe Harbor Framework

Yesterday, a coalition of businesses co-led by the California Chamber of Commerce submitted a letter to the Office of Environmental Health Hazard Assessment (OEHHA), supporting the state agency’s proposed regulations creating a safe harbor framework for acrylamide formed or increased by cooking and heat-processing of foods.

OEHHA and the courts have long recognized that Proposition 65 chemicals are ubiquitous in foods, and that applying the statute to food creates unique issues of fact and law that require special treatment in order to avoid unintended and detrimental consequences.

Consistent with OEHHA’s regulatory authority under the statute, the proposed regulation creates a regulatory framework that has the potential to provide meaningful guidance to food companies and potential enforcers of the statute.

The framework furthers the purposes of Proposition 65, will help food companies comply with its requirements, and will reduce unnecessary litigation.

In its letter, the coalition endorsed the concept of OEHHA’s proposed regulation and the state’s recognition that listed chemicals that are unintentionally formed or increased by cooking and heat processing should not be subject to Proposition 65 if they are reduced to the lowest level currently feasible.

Urgent Need for Proposed Framework

Enforcement activity on listed chemicals that are unavoidably created by cooking or heat processing has increased dramatically since the first pre-litigation notices on acrylamide in food in 2002.

Over the last several years there has been an increase in enforcement activity related to chemicals such as acrylamide that can be formed in a multitude of foods during heat processing and cooking. In the absence of regulatory action, the proliferation of enforcement actions related to listed chemicals formed in food could result in businesses putting warnings on foods that do not require them, which is contrary to the statutory purpose of enabling consumers to make informed choices.

For example, private enforcers have issued notices of violation to food companies and retailers for failing to provide notices for acrylamide on common food products such as almonds, peanut butter, baked beans, cereal, olives, cookies, crackers, confections and grilled chicken. Since 2016, private enforcers have issued more than 875 notices of violation regarding acrylamide in foods, and the total settlement payments on these acrylamide notices have been over $10.3 million.

In their letter to OEHHA, the CalChamber and coalition agree with the agency that “the public would benefit from the proposed regulatory action because sound considerations of public health support the establishment of feasible concentration levels for chemicals unavoidably formed in foods by cooking or heat processing.” The Coalition provides six refinements to the regulatory text to better facilitate the implementation of the proposed regulation and result in a more workable regulation that achieves OEHHA’s policy goals.

Moreover, the CalChamber and coalition believe that OEHHA’s proposed regulation would discourage frivolous litigation against food companies when the average acrylamide level in the food is the lowest feasible level or otherwise below an applicable safe harbor concentration level set in the proposed regulation.

To the read the letter in full, visit https://advocacy.calchamber.com/wp-content/uploads/2020/10/Coalition-OEHHA-Adoption-of-Section-25505-Comments-102120.pdf.

Staff Contact: Adam Regele