On Friday, June 15th, the California Office of Environmental Health Hazard Assessment (OEHHA) announced a proposed regulation clarifying that exposures to Proposition 65 chemicals in coffee do not pose a significant cancer risk. The proposal follows a recent California Superior Court ruling that the coffee industry failed to meet its burden of proof on its alternative significant risk level (ASRL) affirmative defense to its failure to warn of the presence of acrylamide in coffee under Proposition 65. The proposed regulation is significant as, if adopted, it would effectively exempt coffee products from Proposition 65 carcinogen warning requirements.

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The Proposition 65 Interim BPA warning regulation that allows companies to rely on a generic warning posted in California retail establishments will sunset on December 30, 2017. Food and beverage companies that have BPA containing packages in California and that have been relying on the interim BPA warning regulation for compliance should reassess their Proposition 65 warning obligations prior to December 31, 2017.

By way of brief background, effective May 11, 2016, OEHHA started requiring warnings for consumer products containing BPA under the Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65 or Prop 65). Due to the high percentage of the canned and bottled food and beverages that were packaged with BPA-containing materials in California at that time, OEHHA adopted an emergency regulation that allowed the temporary use of a standard point-of-sale warning message (e.g., posting of warnings at checkout stands in retail stores) for BPA. In July 2016, OEHHA proposed an interim rule that essentially extended the temporary regulation through December 30, 2017. The interim regulation also required food companies that exercised this option to provide OEHHA with a list of all food products in which BPA was intentionally used in the manufacture of the can lining or jar or bottle seals.

As of today, there are a total of over 23,000 entries of canned or bottled food products listed in the publicly-accessible OEHHA database for products packaged with BPA-containing materials. The sheer number of listed products in the database suggests that many food and beverage companies have been relying on the interim BPA warning regulation for compliance. On December 31, 2017, those food and beverage companies with products listed in the OEHHA database that have not phased out the use of BPA in their packaging should assess their options for compliance with Proposition 65. Companies should consult with legal counsel when assessing whether they will have an obligation to provide a Prop 65 warning and if so, the type of warning that should be required.

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Effective September 30, 2017, California’s Office of Environmental Health Hazard Analysis (OEHHA) will require warnings for consumer products containing furfuryl alcohol under the Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65). Furfuryl alcohol is a food contaminant that can occur in a potentially significant number of thermally processed foods because it forms as a result of the Maillard reaction that gives many foods a characteristic brown color. As has been the case with other food contaminants listed under the Proposition 65, we expect private litigants to file lawsuits after the warning requirement becomes effective. Companies marketing or manufacturing food products that undergo a Maillard reaction should consider whether furfuryl alcohol is forming and should evaluate their potential obligations and exposure in anticipation of the September 30 effective date.

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Effective July 7, 2017, California’s Office of Environmental Health Hazard Analysis (OEHHA) has listed glyphosate as a carcinogenic chemical under the Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65).  Glyphosate is one of the most heavily used weed control chemicals in food and agricultural production. It is reported that each year more than 300 million pounds of glyphosate-based herbicides are sprayed on food crops, lawns and home gardens in the U.S. We summarize the key issues presented by the listing of glyphosate for the food industry.

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Effective on August 30, 2018, California’s Office of Environmental Health Hazard Assessment (OEHHA) will adopt new regulations regarding the manner in which clear and reasonable warnings should be given under the Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986). By way of brief background, Proposition 65 requires businesses to provide “clear and reasonable warnings” when they knowingly and intentionally cause an exposure to a listed chemical to any individual in California. Under the current Article 6 to Title 27 of the California Code of Regulations, the “clear and reasonable warnings” must be reasonably calculated, considering the alternative methods available under the circumstances, to make the warning message available to the individual prior to exposure.

OEHHA finds the current regulations lack the specificity necessary to ensure the public receives useful information about potential exposures. OEHHA intends to provide more useful information to California consumers through the new regulations. One of the many notable changes is the requirement that the warning needs to contain the name of one or more of the listed chemicals in the consumer products. OEHHA also tries to clarify the relative responsibilities of different parties in the supply chain to provide consumer product exposure warnings. Businesses have the option of continuing to comply with the current version of the regulations until August 30, 2018, or comply with these new regulations in advance of the effective date.

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We previously reported that beginning May 11, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) will start requiring warnings for consumer products containing BPA under the Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65).  On March 17, 2016, OEHHA published two notices related to the BPA warning requirements. In the first notice, OEHHA proposes to establish a Proposition 65 Maximum Allowable Dose Level (MADL) or safe harbor level for BPA of 3 micrograms (μg) per day for dermal exposure from solid materials.  Comments on the dermal safe harbor level are due on May 16, 2016.

Separately, OEHHA proposes an emergency regulation to allow the temporary use of a standard point-of-sale warning message for BPA exposures from canned and bottled foods and beverages.  This would relieve manufacturers of the duty to provide warnings on product packaging for those products that must be labeled by May 11th. While a deadline for comments on the proposed warning message was not provided, under California’s Government Code section 11349.6, interested persons only have five calendar days to submit comments. As such, comments on the point-of-sale warning message are due on March 22, 2016.

This post summarizes the key components of the two notices. Click here to read more.