How Prop 65 Regulatory Amendments May Affect the Food Industry

August 10, 2018
Ann Grimaldi

The amendments to the Safe Drinking Water and Toxic Enforcement Act (Prop 65) warning regulations impose new requirements on many different products, including common food and drinks. Increasing attention has been focused on food and beverage ingredients such as acrylamide in coffee, baked goods and chips; furfuryl alcohol in baked goods, coffee and milk; and alcohol. The food and beverage industry has been significantly affected by litigation for violations of Prop 65 including lawsuits against fast food establishments and dietary supplement manufacturers. These companies face a unique hurdle: consumers presume that the products they eat are safe for consumption and may be especially alarmed by warnings stating that their food contains chemicals known to cause cancer or reproductive harm.

The new regulations apply to all businesses that sell food and beverage products including stores and restaurants. For food products that contain a listed chemical, restaurants and stores must provide a warning that states that consumption of the product can expose the consumer to a listed chemical, which must be identified, and that such chemical is known to cause cancer or birth defects or other reproductive harm. The significant change in the legislation is that food and beverage businesses are required to name the specific chemical that the product contains rather than issue a generic warning that the product contains chemicals known to cause certain harms. The consumer then must be directed to visit www.P65Warnings.ca.gov/food for further information.

Restaurants in California are required to post warnings at the entrance of the establishment and at each point of display if the restaurant has 10 or more employees. A restaurant may also elect to print warnings on their menus. The warning must state that food or beverages sold at the establishment can expose the consumer to certain chemicals including acrylamide in fried or baked goods and mercury in fish, which are both known to cause cancer, birth defects or reproductive harm. The consumer must then be directed to visit www.P65Warnings.ca.gov/restaurant for further information.

Alcohol-specific warnings must also be updated to conform to new requirements under Prop 65. In addition to the statement warning consumers that drinking spirits, beer, wine and other types of alcoholic drinks may increase the risk of cancer and cause birth defects in pregnant women, beverages must also contain a reference to www.P65Warnings.ca.gov/alcohol.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Prop 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

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Ann Grimaldi

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.