Alert 06.11.20
The Evolving Argument Surrounding Federal Preemption of Proposition 65
Ninth Circuit considers whether federal law takes precedence over California statute requiring warnings about chemicals.
Alert
Alert
08.27.20
On August 4, 2020, California’s Office of Environmental Health Hazard Assessment (OEHHA) proposed revisions seeking to add a new Section 25505 to the body of Proposition 65 regulations codified at Title 27 of the California Code of Regulations. The new Section would provide that chemicals formed by cooking or heat-processing foods do not constitute consumer exposures if the concentrations are reduced to the lowest level feasible using appropriate quality control measures. It would also establish maximum concentration levels of acrylamide for certain foods, such as almonds, cookies, and potato products, which OEHHA, the agency responsible for administering Proposition 65, has deemed the lowest levels currently feasible. Foods containing acrylamide below the mandated levels would not be required to bear a Proposition 65 warning. Comments on the proposed revisions are due by October 6, 2020.
Acrylamide has been the subject of numerous lawsuits for coffee and breakfast cereals, among other foods. In its Initial Statement of Reasons, OEHHA explained that some chemicals on the Proposition 65 list, such as acrylamide, are not added to foods, but instead are formed by cooking or heat-processing them. The agency also recognizes that ingesting certain amounts of these chemicals is unavoidable despite best practices, and that the formation of chemicals when foods are processed by heat is not among the “knowing and intentional” exposures that require a warning pursuant to the Proposition 65 regulations. In an attempt to avoid consumer confusion that may result from a sudden increase in acrylamide warnings on food products, OEHHA seeks to curtail enforcement of warnings for acrylamide-containing foods, as long as the foods meet certain standards.
In order to be eligible for the exemption from providing a Proposition 65 warning for acrylamide, the producer must show that the chemical was created by cooking that adheres to quality control measures that result in the lowest level feasible. While the proposed revisions do not provide guidelines for the quality control measures, the Initial Statement of Reasons suggests several ways to feasibly reduce acrylamide, such as: changing the temperature at which food is cooked to avoid unnecessary browning, controlling storage temperature and humidity to minimize formation of sugars that convert into acrylamide when browned, and sourcing ingredients from growers that adopt agricultural practices to reduce sugars in crops. Practically speaking, this means that, at the very least, those food producers who intend to use the proposed regulation as a defense will need to maintain documentation of the quality control procedures they undertake.
Interestingly, the maximum concentration levels in the proposed new Section 25505 are largely based on figures that parties to Proposition 65 lawsuits have memorialized in Consent Judgments. The agency’s decision to create legislation from private settlements that are often entered into without providing lab data or expert opinion to the judges approving the Consent Judgment is a novel take on Proposition 65 regulation and enforcement. If the proposed Section 25505 is adopted, it appears that private citizen enforcers will have far more sway in the legislative process than seen previously. Nevertheless, the maximum concentration levels provided by the proposed Section 25505 may provide a more robust defense to a Proposition 65 action, since the standards are more clear-cut.
Food producers and retailers should also take note of the federal court lawsuit filed in October 2019 by the California Chamber of Commerce (Chamber) against the California Attorney General, seeking a declaration that Proposition 65 warnings for dietary acrylamide violate the First Amendment’s prohibition against compelled false or misleading speech. The Chamber’s complaint alleges more than 250 companies “have been targeted with 60-day pre-litigation notices in connection with alleged exposures to acrylamide in their food products.” These food products include, among others: potato and potato-based products, nut butters, almonds, cereals, and olives. On January 31, 2020, the Court granted the Attorney General’s motion to dismiss, and it dismissed Plaintiff’s claims with leave to amend. On March 3, 2020, the Court denied the Chamber’s motion for preliminary injunction without prejudice, after which the Chamber filed its first amended complaint on March 16, 2020. The Attorney General’s motion to dismiss was heard on June 5, 2020. The Court took the matter under submission, and to date, a written order has yet to issue.
The next few months will likely determine if and how acrylamide-containing foods should be warned. For more information, or to discuss the implications of these proposed amendments, please contact us.