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Prop. 65 Litigation Involving Acrylamide Heats Up on Eve of Ruling in Coffee Cases

California Proposition 65 litigation over acrylamide in food has been heating up lately, receiving national news coverage in anticipation of a ruling in a fiercely contested case involving exposure to acrylamide in coffee.

Acrylamide is generated when certain foods are baked, fried or otherwise heated to high temperatures, causing the food to brown or caramelize. Acrylamide is particularly likely to be formed in high-carbohydrate foods such as French fries, potato and vegetable chips, cookies, crackers, cereals, breads and bagels, but also has  been found in grilled meat, some fruits, nuts and – perhaps most notoriously – coffee.

Regulatory Background

Prop. 65 prohibits businesses from knowingly and intentionally exposing California consumers to a chemical known to the state of California to cause cancer or reproductive harm without first providing a warning. (Cal. Health & Safety Code § 25249.6.)  For some listed chemicals, California’s Office of Environmental Health Hazard

California Proposition 65 Actions Expected to Target Furfuryl Alcohol in Food and Beverages

The next wave of lawsuits involving California Proposition 65 and food products may allege exposure to furfuryl alcohol, a chemical commonly found in a wide variety of thermally processed foods and listed as a carcinogen under Proposition 65. The warning requirement for furfuryl alcohol took effect on September 30, 2017.  As of the date of this post, there have been no 60-day notices alleging exposure without a warning. Given the prevalence of this chemical, however, future enforcement actions seem likely.

Furfuryl alcohol forms when amino acids react with sugar in a process known as the “Maillard reaction” that gives many foods a golden brown color.  Much like acrylamide, which has been the subject of numerous 60-day notices and lawsuits, furfuryl alcohol can be found in a wide variety of foods, including:

  • baked goods
  • coffee
  • pasteurized milk
  • alcoholic beverages such as wine and beer
  • ice cream
  • juice beverages
  • toasted nuts
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