Regulatory update for acrylamide in foods published in California

The state of California has recently amended the California Proposition 65, which requires businesses to provide warnings to Californians about significant exposures to toxic chemicals, by adding a new section that addresses acrylamide in food formed by cooking or heat processing.  

During the past ten years, the food industry has been subjected to numerous Proposition 65 enforcement activities related to acrylamide that led to enormous costs. As the new regulation section defines what is an "exposure to acrylamide", or conversely what is "not" an exposure, it might provide some protections for the food industry against future lawsuits.  

At the end of December 2022, the Office of Administrative Law approved the California Office of Environmental Health Hazard Assessment’s proposal to amend Title 27, California Code of Regulations by adopting Section 25506, originally proposed as Section 25505. The regulation will be effective on April 1, 2023.  

The regulation provides that intake of acrylamide that is formed during the cooking or heat processing of foods does not represent an exposure for the purposes of Proposition 65 if the concentrations of acrylamide are reduced to the lowest level currently feasible using practices defined in the Codex Alimentarius 2009 Code of Practice. The regulation also establishes maximum concentration levels for acrylamide in certain foodstuffs, and food groups, that are considered to be the lowest levels achievable. No warning would be required in case the concentrations of acrylamide are at or below the levels identified in the regulation.  

Acrylamide concentrations are given in the table below in parts per billion by weight (ppb).        

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 update on the regulation will provide at least some manufacturers with a clear benchmark for making decisions about whether warnings are required for their products or not.