Acrylamide, a Proposition 65-listed substance that naturally forms in the cooking and heating of many plant-based foods, has been the focus of regulatory and court action over the past few years.

As we previously reported, there is currently an injunction preventing Prop 65 enforcers from filing or prosecuting a new lawsuit to enforce the Prop 65 warning requirement for cancer as applied to acrylamide in food and beverage products. In response to growing concern regarding Prop 65’s regulation of acrylamide, the California Office of Environmental Health Hazard Assessment – the agency tasked with enforcing Prop 65’s warning requirements – approved a new, alternative “safe harbor” warning for foods containing acrylamide.

Effective January 1, 2023, businesses selling food containing acrylamide have the option of using the following, non-mandatory warning:

CALIFORNIA WARNING: Consuming this product can expose you to acrylamide, a probable human carcinogen formed in some foods during cooking or processing at high temperatures. Many factors affect your cancer risk, including the frequency and amount of the chemical consumed. For more information including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide.

This warning differs significantly from the current safe-harbor warning for food products:

WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals], which are known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food.

As acrylamide is still the subject of significant ongoing litigation, it is possible that future acrylamide warnings may look different or may not even be required. For now, businesses have this new option for warning California consumers of acrylamide exposure. While even the new option arguably presents constitutional issues – given that it may not be purely factual and uncontroversial – it may be less likely to concern consumers.