1CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENT
SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT OF 1986
PROPOSITION 65
NOTICE OF PROPOSED RULEMAKING 
TITLE 27, CALIFORNIA CODE OF REGULATIONS
SAFE HARBOR WARNING S FOR ACRYLAMIDE EXPOSURE FROM FOOD 
PROPOSED AMENDMENT TO 
SUBS ECTION 25607 .2(b)
FOOD EXPOSURE WARNINGS - CONTENT
April 5,  2024
NOTICE IS HEREBY GIVEN that the Office of Environmental Health Hazard 
Assessm ent (OEHHA) proposes amend  Article 6 of Title 27 of the California Code of 
Regulations , section 25607 .2.1This proposed rulemaking would amend subsection (b) 
to provide an additional safe harbor warning option , for businesses that cause 
significant exposures to acrylamide in food products.2This would be in addition to the 
applicable safe harbor warnings that already apply to such exposures under existing 
law. The warning content and methods provided in the safe harbor regulations are 
deemed “clear and reasonable” by OEHHA for purposes of the Act.
PUBLIC  COMMENTS
To be considered, OEHHA must receive comments by May 20, 202 4, the designated 
close of the written comment period.  All written comments will be posted on the OEHHA 
website at the close of the public comment period.
OEHHA strongly recommends that the public submit written information electronically, 
rather than in paper form. Comments may be submitted electronically th rough our 
1 All further references are to sections of Title 27, Cal. Code of Regs., unless indicated otherwise.  
2 A current rulemaking noticed on October 27, 2023, Office of Administrative Law file no. 2023 -1017 -03, 
would also amend section 25607.2. In that proposa l, existing subsection (b) would be renumbered to (c). 
If that rulemaking is finalized before this proposal, that non -substantive change will affect the numbering 
of this proposal.2website at https://oehha.ca.gov/comments . In the alternative, comments can be mailed 
to the address below.
Monet Vela
Office of Environmental Health Hazard Assessment
1001 I Street, 23rd Floor
P. O. Box 4010
Sacramento, California 95812 -4010
Telephone: 916 -323-2517
OEHHA encourages all commenters to submit their comments in a format compliant 
with the accessibility require ment s of the Americans with Disabi lities Act , so that they 
can be read using screen reader technology  and those with visual impairments are able 
to listen to them .  
OEHHA is subject to the California Public Records Act and other laws that require the 
release of certain information upon request. If you provide comments, please be aware 
that your name, address , and e -mail may be available to third parties. 
PUBLIC PROCEEDINGS
A public hearing on these proposed regulatory amendments will only be scheduled 
upon request. To request a hearing, send an e -mail to Monet Vela at 
monet.vela@oehha.ca.gov  or to the address listed above by no later than May 6 , 202 4. 
If one is scheduled, OEHHA will mail a notice of the hearing to the requester and 
interested parties on the Proposition 65 mailing list for regulatory public hearings. The 
notice will also be posted on the OEHHA web site at least ten days before the public 
hearing date. The no tice will provide the date, time, and instructions for participating in 
the hearing .  
CONTACT
Please direct inquiries concerning the proposed regulatory action described in this 
notice to Monet Vela ] at (916) 323 -2517, or by e -mail to monet.vela@oehha.ca.gov .  
Corey Friedman  is a back -up contact person for inquiries concerning processing of this 
action and is available at (916) 323-2635 or corey.friedman@oehha.ca.gov . 
AUTHORITY
Health and Safety Code section 25249.12.
REFERENCE
Health and Safety Code sections 25249.6  and 25249.11 . 3INFORMATIVE D IGEST/POLICY STATEMENT OVERVIEW
BACKGROUND  AND SUMMARY OF EXISTING LAWS
OEHHA is the lead agency that implements Proposition 65 and has the authority to 
promulgate and amend regulations to further the purposes of the Act. 3The Act requires  
businesses  to provide a clear and reasonable  warning  before  they cause  an exposure  to 
a chemical listed  as known  to the state  to cause cancer  or reproductive  toxicity .4The 
Act also prohibits  the discharge  of listed chemicals  to sources  of drinking  water .5The 
proposed amendment would adopt new safe harbor warning content for exposure to 
acrylamide from food.
Under Proposition 65, when a product exposes a consumer to a cancer -causing 
chemical, a business must first provide a “clear and reasonable” warning (H ealth & 
Safety Code §25249.6), unless the level of exposure does not pose significant risk. To 
reduce the burden on businesses, they may rely upon the safe harbor warnings 
promulgated by OEHA, which are  presumptively clear and reasonable.  (27 CCR § 
25601.)  The safe harbor warnings are not required by law, and businesses may develop 
their own “clear and reasonable” warnings. However, many businesses use the safe 
harbor warnings to avoid the risk of litiga tion over whether a given warning is “clear and 
reasonable.”
Existing safe harbor warnings applicable to such exposures would still be available for 
businesses.  These warnings may be found in the existing section 25607.2(a) [general 
warning for food exposu res] and 25607.2(b) [warning for food exposures to acrylamide].
AMENDMENTS
The text of the proposed amendment is included with this Notice. In that document, a ny 
additions to the text are indicated in underline  and any deletions in cross -out.
Amendment to 25607.2(b):  The first sentence of subsection (b) is amended to indicate 
that companies availing themselves of the acrylamide -specific safe harbor warning may 
comply with either subpart (1) or the newly proposed (2). Subsection (b)(1) in this 
proposal contains the existing safe harbor language, and subsection (b)(2) provides the 
new proposed warning options added by this rulemaking.  
3 Health and Safety Code s ection 25249.5 et seq.,  The Safe Drinking Water a nd Toxic Enforcement Act of 
1986,  commonly known as “Proposition 65 ,” hereafter referred to as “Proposition 65” or “the Act .”
4 Health and Safety Code section 25249.6 .
5 Health and Safety Code section 25249.5 .4A current rulemaking noticed on October 27, 2023, Office of Administrative Law file no. 
2023 -1017 -03, would also amend section 25607.2. In that proposal, existing subsection 
(b) would be renumbered to (c). If that rulemaking is finalized before this proposal, that 
non-substantive change will affect the numbering of this proposal.
Amendment to 25607.2(b)(1):  The exist ing acrylamide -specific safe harbor language is 
amended to allow the signal words “CA Warning and “Warning” in addition to “California 
Warning.”  This subsection has also been amended to make the existing warning part of 
a single subsection, for ease of com parison with the new warning option in proposed 
subsection (b)(2). Non -substantive amendments to allow the existing safe harbor 
warning for acrylamide in food to be described in (b)(1) and the proposed warning in 
(b)(2).
New subsection 25607.2(b)(2):  This is the proposed addition, which creates a new, 
additional safe harbor warning for acrylamide in foods.  The proposal would add the 
following text: 
(2) The words “ WARNING :” or “ CA WARNING ” or “ CALIFORNIA WARNING :” in 
all capital letters and bold print, followed by the language in subsections (A) and 
(B). Optional language in subsection (C) may be added. “United States” may be 
abbreviated as “US” and the words “Environmental Protection Agency” as “EPA".
(A) The words, “Consuming this produ ct can expose you to acrylamide,” or 
the words “Consuming this product can expose you to acrylamide, a 
chemical formed in some foods during cooking or processing at high 
temperatures.” 
(B) At least one of the following sentences:
(i) “The International Ag ency for Research on Cancer has found 
that acrylamide is probably carcinogenic to humans.”
(ii) “The United States Environmental Protection Agency has found 
that acrylamide is likely to be carcinogenic to humans.” 
(iii) “The United States National Toxicol ogy Program has found that 
acrylamide is reasonably anticipated to cause cancer in humans.”
(C) The content in (A) and (B) may be followed by one or more of the 
following sentences:
(i) “Acrylamide has been found to cause cancer in laboratory 
animals.”5(ii) “Many factors affect your cancer risk, including the frequency 
and amount of the chemical consumed.”
(iii) “For more information including ways to reduce your exposure, 
see www.P65Warnings.ca.gov/acrylamide.”
OBJECTIVES AND SPECIFIC BENEFITS OF THE PROPO SED REGULATIONS
A district court issued a preliminary injunction against enforcement of the Proposition 65 
warning for acrylamide in food in CA Chamber of Commerce v. Becerra  (E.Dist.Cal. 
2021) 529 F.Supp.3d 1099. The preliminary injunction, which addressed  warning 
langua ge materially different than both existing , acrylamide -specific safe harbor warning  
regulations and the amendments proposed in this rulemaking, was upheld by the Ninth 
Circuit in CA Chamber of Commerce v. Council for Education and Research on Toxics 
(9th C ir. 2022) 29 F.4th 468. OEHHA drafted the existing tailored warning regulation 
accordingly. That regulation , which added subsection (b) to section 25607.2,  became 
effective on January 1, 2023. The case is continuing, and the question of the 
constitutionali ty of the current acrylamide warning content  has not yet been resolved.
On November 7, 2023, the Ninth Circuit provided additional guidance regarding 
Proposition 65 and compelled commercial speech under the First Amendment in 
National Association  of Wheat Growers v. Becerra  (9th Cir. 2023) 85 F.4th 1263. 
Although OEHHA believes that the existing safe harbor warning for acrylamide in food 
complies with the  First Amendment, OEHHA has determined that providing additional 
options for safe harbor warnings will f urther the right -to-know provisions of the Act while 
ensur ing that the warning remains  “(1) purely factual, (2) noncontroversial, and (3) not 
unjustified or unduly burdensome.”6The proposal also provides businesses with 
increased flexibility .
NO INCONSISTENCY OR INCOMPATIBILITY WITH EXISTING REGULATIONS
OEHHA has conducted an evaluation and has determined that Article 6  is the only 
regulation concerning Proposition 65  safe harbo r warnings. Therefore, the proposed 
regulato ry action is neither inconsistent nor incompatible with any other existing state 
regulations. The action does not change the existing mandatory requirements on 
businesses subject to Proposition 65, state or local  agencies and does not address 
compliance with any other law or regulation.
6 American Beverage Assoc. v. City and County of San Francisco  (9th Cir. 2023) 916 F.3d 749, 756.6LOCAL MANDATE/FISCAL IMPACT
Because Proposition 65 by its terms  does not apply to local agencies or school districts, 
OEHHA has determined the proposed regulatory action would not impose a mandate on 
local agencies or school districts; nor does it require reimbursement by the State 
pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government 
Code.7OEHHA has also determined that no nondiscretionary costs or savings to local 
agencies or school districts will result from the proposed regulatory action , nor will there 
be any costs or savings to the state or in federal funding to the state because of the 
proposed regulatory action.
NO INCORPORATION BY REFERENCE
No forms or other documents are incorporated by reference.
EFFECT ON HOUSING COSTS
OEHHA has initially determined that the proposed regulatory action will have no effect 
on housing costs because it does not impose any new mandato ry requirements on any 
business.
SIGNIFICANT STATEWIDE ADVERSE ECONOMIC IMPACT DIRECTLY AFFECTING 
BUSINESS, INCLUDING ABILITY TO COMPETE
No business will be required to change its warnings, or add new warnings, due to the 
safe harbor warning proposal. Busi nesses are not legally required to use the proposed 
safe harbor warning content and may use other “clear and reasonable” warnings on 
consumer products. These include the existing safe harbor warnings applicable to 
acrylamide in food. Under this proposal, b usinesses can retain use of those warnings 
while keeping the safe harbor protection. This proposal only creates another safe harbor 
option; it does not mandate that businesses use that option.
OEHHA has therefore made an initial determination  that the adop tion of this action  will 
not have a significant statewide adverse economic impact directly affecting businesses, 
including the ability of California businesses to compete with businesses in other s tates.
RESULTS OF ECONOMIC IMPACT ANALYSIS (Gov. Code section 11346.3(b))
Creation or Elimination of Jobs within the State of California
The proposed regulatory action will not impact the creation or elimination of jobs w ithin 
the State of California. The proposed regulation will help businesses comply with t he 
7 See Health and Safety Code section 25249.11(b) .7requirements of Proposition 65 by providing an additional, nonmandatory safe harbor 
warning for acrylamide in food. As stated above, businesses are not required to take 
any action based on this rulemaking.
Creation of New Businesses or Elimination of Existing Businesses within the 
State of California
The proposed regulatory action will not impact the creation of new businesses or the 
elimination of existing businesses within California. The proposed regulation will help 
businesses comply  with the requirements of Proposition 65 by providing an additional, 
nonmandatory safe harbor warning for acrylamide in food. As stated above, businesses 
are not required to take any action based on this rulemaking.
The Expansion of Businesses Currently Do ing Business within the State
OEHHA  does not anticipate any major impact on the expansion of businesses currently 
doing business within the state. The proposed regulation will help businesses comply 
with the requirements of Proposition 65 by providing an additional, nonmandatory safe 
harbor warning for acrylamide in food. As stated above, businesses are not required to 
take any action based on this rulemaking.
Benefits of the Proposed Regulation
Making it more straight -forward for businesses to comply with the “clear and 
reasonable” warning requirement of the Act promotes compliance. Greater compliance 
furthers the right -to-know purposes of the statute and therefore promotes public health 
and safety.
Cost impacts on Representative Person or Business 
OEHHA is not aware of any cost impacts that a representative private person or 
business would necessarily incur in reasonable compliance with the proposed 
regulatory action. The action does not impose any new mandatory requirements upon 
private persons or business es.
Effect on Small Business
The proposed regulatory action will not adversely impact small businesses . As stated 
above, small businesses will not be required to take any action as a result of this 8rulemaking. Additionally, Proposition 65 is limited by its ter ms to businesses with 10 or 
more employees .8
REASONABLE ALTERNATIVES TO THE REGULATION AND THE AGENCY’S 
REASONS FOR REJECTING THOSE ALTERNATIVES
Pursuant to Government Code section 11346.5(a)(13), OEHHA must  determine  that no 
reasonable alternative  considered by OEHHA, or that has otherwise been identified and 
brought to the attention of OEHHA, would be more effective in carrying out the purpose 
for which Proposition 65 is proposed, would be as effective and less burdensome to 
affected pr ivate persons than the proposed action, or would be more cost -effective to 
affected private persons and equally effective in implementing the statutory policy or 
other provision of law.
The following alternatives were considered:
Alternative 1: OEHHA consi dered drafting a new safe harbor warning tailored to 
acrylamide in food which would replace the existing warning. This was rejected because 
businesses which prefer to continue using the existing safe harbor language are still 
providing adequate  information  to consumers and should therefore be allowed to 
continue.  This alternative would be no more effective at carrying out the agency’s 
purpose, and no more cost -effective, than the current proposal. This alternative would 
be more burdensome on businesses than  the current proposal.
Alternative 2: OEHHA also considered whether the new safe harbor warning should 
simply state the full text, without providing a variety of options for businesses to select. 
OEHHA rejected this alternative because it determined that i t was appropriate to give 
businesses the flexibility of multiple options, so they can select the safe harbor 
language that best suits their needs. This alternative would be no more effective at 
carrying out the agency’s purpose, and no more cost -effective, than the current 
proposal. This alternative would be more burdensome on businesses  than the current 
proposal .
AVAILABILITY OF STATEMENT OF REASONS AND TEXT OF PROPOSED 
REGU LATIONS
OEHHA has prepared and has available for public review an Initial Statement of 
Reasons for the proposed regulation, the information upon which the regulation is 
based, and the text of the proposed regulation. These documents are available on 
OEHHA’ s web site at www.oehha.ca.gov /Proposition -65. 
8 Health and Safety Code section 25249.11(b) .9AVAILABILITY OF CHANGED OR MODIFIED TEXT
The full text of any proposed regulation that is changed or modified from the expre ss 
terms of this proposed action will be made available at least 15 days prior to the date on 
which OEHHA adopts the resulting regulation. Notice of the comment period on the 
revised proposed regulation and the full text will be mailed to individuals who t estified or 
submitted oral or written comments at the public hearing, whose comments were 
received by OEHHA during the public comment period , and anyone who requests 
notification from OEHHA of the availability of such change. Copies of the notice and the 
changed regulation will also be available on the OEHHA Web site at 
www.oehha.ca.gov /Proposition -65. 
AVAILABILITY OF THE FINAL STATEMENT OF REASONS
A copy of the Final Statement of Reasons may be obtained, when it becomes available, 
from Monet Vela at the e -mail or telephone number indicated above. The Final 
Statement o f Reasons will also be available on OEHHA’s web site at 
www.oehha.ca.gov /Proposition -65.