Exemptions to Prop 65

Since it was enacted in the late eighties, Prop 65 law has continuously evolved. Currently it offers the following exemptions to its labeling laws:

  • Public water systems
  • Federal, state, and local government agencies
  • Businesses with fewer than 10 employees
  • Exposure to chemicals below the established risk levels
  • Chemical discharges that do not result in a “significant amount” of the listed chemical entering into any source of drinking water
  • Exposure to listed chemicals that are naturally occurring in food

More specifically, this last exemption allows a food manufacturer to subtract the level of a naturally occurring chemical from its total chemical load when calculating a consumer’s risk. These chemicals might be soil-based, like heavy metals resulting from natural geologic processes, or they might be created through normal food processing practices, like roasting. While it sounds like this exemption would be a boon to food manufacturers (like us!) proving the natural occurrence of a chemical is no simple task.

For chemicals like heavy metals, which can be naturally occurring in organic soils and absorbed into produce, a company is required to provide the “natural background level of the chemical in the area in which the food is raised, or grown, or obtained, based on reliable local or regional data.” This is a significant logistical and financial challenge in many areas of the world, multiplied exponentially by the variety of farms and regions used by a company for sourcing their various foods. Very few manufacturers even attempt to use this exemption.

Proving that a chemical is naturally occurring through normal food processing practices is also a challenge. As an example, let's look to our favorite morning brew.

Roasting coffee beans produces acrylamide, a chemical that naturally occurs in some starchy plant foods when they’re cooked at high temperatures. In 2010, a nonprofit group called the Council for Education and Research on Toxins (and located at the same address as the law firm that represented it) sued roughly160 coffee roasters and retailers for Prop 65 violations for failing to disclose acrylamide in their coffee with a warning label.

With companies like Starbuck’s and Costco named in the lawsuit, the coffee industry pushed back. They claimed that low levels of acrylamide as they occur naturally in food are not carcinogenic for humans, citing the lack of any of any evidence to the contrary. After reviewing over 100 studies, the International Agency for Research on Cancer sided with the coffee roasters, determining that the risk of cancer from coffee drinking was unproven, and that studies had "failed to provide sufficient evidence that dietary acrylamide increases the risk of any type of cancer in humans." 

Eventually, a judge officially ruled in favor of the coffee companies The adopted regulation said that, in effect, exposure to acrylamide in coffee was created by and inherent to the process of coffee bean roasting, and as such was not considered carcinogenic to humans.

That process took nine years, from 2010 to 2019. In the interim, many of the defendants had settled, adding Prop 65 warnings to their cups and paying out around $1 million in legal fees.

Notably, the exception for naturally occurring acrylamide in roasted coffee has not yet been extended to any other foods containing acrylamide due to processing. In 2020 alone, hundreds of plaintiff groups sent Prop 65 violation notices to manufacturers of chips, cereals, nuts, crackers, tortillas, bread, popcorn, and more, alleging that the acrylamide found in their foods through the roasting process demanded a Prop 65 warning label. One door was finally shut, but numerous others were left open for exploitation.

But the Prop 65 wheels are turning. A proposed revision would establish maximum concentration levels of acrylamide in foods that the CA Office of Environmental Health Hazard Assessment has determined are as low as possible. According to some of the proposed criteria, a manufacturer would be expected to demonstrate quality control measures ranging from exacting food storage specifications, to proving that the growing and harvesting practices used by their farmers resulted in lower sugar levels in crops. Whether this revision will end up being useful to food manufacturers, or more challenging than simply applying a Prop 65 warning and trusting their consumers to trust, them remains to be seen.

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