California’s Office of Environmental Health Hazard Assessment (OEHHA) proposes to amend the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65) by adopting Section 25505, “Exposures to Listed Chemicals in Cooked or Heat Processed Foods.” The proposed amendment establishes maximum concentration levels for listed chemicals in foods that are produced by cooking or heat processing that are deemed by OEHHA to be the lowest levels currently feasible.  

Under the existing regulation for naturally occurring chemicals in foods, a chemical is naturally occurring only to the extent that the chemical “did not result from any known human activity.” Currently, chemicals in food created by cooking or heat processing are not considered to be naturally occurring under Section 25501. However, the proposed amendment would draw a distinction between exposures that result from cooking or heat processing that cannot be feasibly avoided and those that can be feasibly avoided. 

In its initial statement of reasons, OEHHA states that some degree of formation of listed chemicals in many foods is unavoidable when the foods are cooked or otherwise processed with heat and that the chemicals are byproducts of the processing, as opposed to being intentionally present. While acknowledging that certain amounts of these chemicals are unavoidable, OEHHA added that, in many circumstances, the level of the chemical formed can be lowered by optimizing certain practices.

Notably, the proposed amendment points to concentration levels for acrylamide in certain products, including bread, cookies, crackers, potato products, prune juice, and waffles, that would be deemed to comply with the proposed amendment. In addition to acrylamide, OEHHA also notes that it may potentially consider other foods or chemicals in future rulemaking.

The proposed amendment would not apply to parties to an existing court-ordered settlement or final judgment establishing a concentration of acrylamide in a specific product covered in that settlement or judgment. OEHHA is accepting comments on the proposed amendment until October 6, 2020.