Finalized Acrylamide Warnings and Related Legal Showdown

This week, the Office of Environmental Health Hazard Assessment (OEHHA) announced that the proposed Prop. 65 additional safe harbor warning options for acrylamide have become final. The safe harbor options will be included in Title 27, California Code of Regulations 25607.2(b), and are set to take effect on January 1, 2025. This would be in addition to the safe harbor warnings that already apply to such exposures under the existing regulations: the general warnings for food and the current safe harbor warning for acrylamide exposures from food.

This is a significant development for those in the food and beverage industry, as acrylamide has been a hot topic of regulatory and legal debate in recent years.

Currently, pursuant to the Prop. 65 regulations, safe harbor acrylamide warnings may utilize the following text:

“CALIFORNIA WARNING:”; and

“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 option will remain intact; however, additional safe harbor options will be available. Under the new safe harbor warning options, warnings must start with one of the following words in all bold and capital typeface:

1. “WARNING”
2. “CA WARNING”
3. “CALIFORNIA WARNING”

These words must be followed by either of the following statements:

1. “Consuming this product can expose you to acrylamide.”
2. “Consuming this product can expose you to acrylamide, a chemical formed in some foods during cooking or processing at high temperatures.”

The warning must include one of the following statements:

1. “The International Agency for Research on Cancer has found that acrylamide is probably carcinogenic to humans.”
2. “The United States Environmental Protection Agency has found that acrylamide is likely to be carcinogenic to humans.”
3. “The United States National Toxicology Program has found that acrylamide is reasonably anticipated to cause cancer in humans.”

The warning may be followed by one or more of the following statements:

1. “Acrylamide has been found to cause cancer in laboratory animals.”
2. “Many factors affect your cancer risk, including the frequency and amount of chemical consumed.”
3. “For more information, including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide.”

As illustrated, the final regulation provides various warning options that businesses must adhere to in order to comply with California’s stringent Prop. 65 safe harbor warning requirements. Failure to comply with the Prop. 65 warning requirements could expose companies to steep penalties – up to $2,500 per day for each violation (with a “violation” typically considered as a California sale). Non-compliant businesses may face enforcement actions, penalties, and attorney fees.

Should you have any questions or need a deeper dive into these options, feel free to reach out—we’re happy to schedule a call to discuss the specifics.

First Amendment Battle: Cal. Chamber's Ongoing Legal Challenge

While OEHHA has moved forward with its acrylamide warning regulation, the California Chamber of Commerce (Cal. Chamber) is not backing down from its legal challenge. In the matter of California Chamber of Commerce v. Rob Bonta, U.S. District Court for the Eastern District of California Case No. 2:19-cv-02019−DJC−JDP, Cal. Chamber argues that the proposed warning remains unconstitutional under the First Amendment, as it is not “purely factual,” “noncontroversial,” and not unjustified or unduly burdensome. The crux of their argument hinges on whether the link between dietary acrylamide and cancer is strong enough to justify compelling businesses to include such warnings on their products.

This ongoing battle is particularly significant because Cal. Chamber contends that the proposed new safe harbor warning options do not resolve the constitutional issues. Essentially, the argument is that there is insufficient scientific consensus to warrant a Prop. 65 warning for acrylamide in food products, making the warning more than just a neutral fact—it becomes a form of compelled speech that violates free speech rights.

The next major milestone in this legal dispute is the hearing for the Motion for Summary Judgment brought by Cal. Chamber, which is scheduled for January 23, 2025. This motion seeks to have the court declare the acrylamide warning unconstitutional. The outcome of this hearing will undoubtedly send ripples through the food and beverage industry, as it could dramatically shift how companies approach labeling and compliance under Prop. 65.

---

We will be keeping a close eye on the developments surrounding this case and will continue to provide critical updates as they unfold. Stay tuned—this is one legal battle that could reshape the regulatory landscape for years to come.