After more than a decade of treacherous, expensive, and frivolous Proposition 65 enforcement activities related to acrylamide in food that pounded the industry, OEHHA has finally adopted new regulations that might provide some protections. After a failed attempt in 2021, OEHHA refined the proposed text enough to appease the OAL.

The regulation will come into effect on April 1, 2023.

Passed at the end of December 2022, the new regulatory section defines what is an “exposure to acrylamide”, or conversely what is “not” an exposure, specifically:

  1. The extent the chemical was created by cooking or other heat processing, if the manufacturer of the food has reduced the levels of acrylamide to the lowest level currently feasible by utilizing applicable practices recommended in Codex Alimentarius Code of Practice for the Reduction of Acrylamide in Foods (2009),
  2. Or when the unit (single representative sample) and average acrylamide content of the foods in the cited table are below the referenced values (note: “average” is defined as: at least five samples taken over a period of no less than 60 days with no less than 10-day intervals between sampling). No specific manufacturing steps need to be taken for this compliance approach.

Other Points:

  • Any settlements or court-agreements related to acrylamide levels in foods put in place prior to April 1, 2023 may have values that are different than those cited in the regulation.
  • Nothing in the regulation precludes a manufacturer from relying on other data, evidence, risk assessment approaches, or provisions of the regulations to demonstrate that a warning is not required.

This Proposition 65 acrylamide regulation will finally provide at least some manufacturers with a clear benchmark for making decisions about whether warnings are required for their products and avoiding enforcers, although the average sample testing requirements do add some additional burdens.

RegTox Solutions Inc. is an experienced professional services company that helps businesses in all industries comply with every aspect of Proposition 65 and avoid costly enforcement activity. Reach out today for a free consultation!

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