Over the last 10 years or so, the food and beverage industry has been pummeled by Prop 65 lawsuits due to the presence of acrylamide (a compound naturally formed when certain foods are baked, roasted, fried). In total, there have been nearly 1,400 NOV issued in relation to acrylamide, resulting in millions of dollars going to plaintiff’s groups.

This month, two significant decisions were issued on this front:

1) First, the U.S. Court of Appeals for the Ninth Circuit reinstated a district court’s preliminary injunction halting new acrylamide warning lawsuits against foods and beverages under Prop 65. With the preliminary injunction reinstated, both the state Attorney General and private enforcers are prohibited from filing new lawsuits to enforce the Prop 65 warning requirement as applied to acrylamide in foods and beverages. This is great news for the food industry and hopefully this prohibition remains in place.

2) Secondly, the California Office of Administrative Law (OAL) issued a decision of disapproval (rejection) of a regulation proposed by OEHHA to remove the need for Prop 65 warnings for Prop 65-listed chemicals in foods that are created during cooking or heat processing (like acrylamide) if the concentrations are “reduced to the lowest level currently feasible using quality control measures”. Although this sounded good and a necessary step to protect food companies from these frivolous lawsuits, the OAL ultimately concluded that too many phrases in the proposed regulation was ambiguous or vague (i.e., undefined), rendering them difficult to interpret. We will track to see if OEHHA revises the proposed language and resubmits to the OAL.

At the very least, the injunction provides relief for food companies, although violations are issued to this industry for various other listed chemicals that companies should be aware of.

Stay tuned and if you need assistance or have any questions, reach out!

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