By Robert L. Falk
Morrison & Foerster
March 8, 2018
Plaintiffs have begun serving Proposition 65 notices of violation alleging unwarned exposures to furfuryl alcohol (FFA). Like acrylamide, which has been the subject of significant Proposition 65 litigation already, FFA is present in a wide variety of foods and flavorings and forms as a byproduct of cooking.
California’s Office of Environmental Health Hazard Assessment (OEHHA) added FFA to the list of chemicals subject to Proposition 65 on September 30, 2016. The OEHHA listing was based on the U.S. Environmental Protection Agency’s 2014 finding of likely human carcinogenicity because “furfuryl alcohol causes increased incidences of rare malignant nasal tumors in male rats and rare malignant and combined malignant and benign kidney tumors in male mice.” Companies became presumptively obligated to provide Proposition 65 cancer warnings for exposures to FFA at the start of the fourth quarter of 2017. In addition to its industrial applications, FFA can be found in various foods and flavorings.
FFA is commonly added to food products with barbecue flavors and vanilla flavors (such as ice cream), as well as smoked meats, teas, whiskey, and grain. FFA is also formed as a result of the Maillard reaction when starches and sugars are browned during frying, baking, and roasting. Claims of failing to provide Proposition 65 warnings for FFA may, therefore, follow the same pattern as has been experienced in Proposition 65 litigation concerning acrylamide in recent years; a wide variety of foods, including fries, chips, cookies, bread and other baked goods, and beverages, will be targeted. Companies that make these products, and stores and restaurants that sell them, will need to either hunker down for multiple years of litigation to justify a decision not to warn, or send up a white flag, pay the plaintiffs their bounty, and warn, or find a yet-to-be-discovered way to reduce the FFA levels that naturally arise in their food and beverage products.
This prediction of farce repeating itself is not only sad but true. To date, the following categories of foods have already been subject to intent to sue notices regarding FFA from several Proposition 65 plaintiffs and many more are likely to be targeted in the future, especially if settlements begin to emerge:
- Fried or Baked Potato – or Sweet Potato – Based Snack Foods
- Barbeque-Flavored or Jalapeño-Flavored Foods
- Potato Bread
Even though there is considerable controversy about whether FFA can be reliably measured in a food or beverage matrix, even though there is no validated lab method for such testing, and even though academic literature has documented problems with false positives, neither OEHHA nor the California Attorney General’s office has expressed concern about these threatened claims or the “Certificates of Merit” the plaintiffs have filed in support of their allegations. Nor has OEHHA established a no significant risk level (NSRL) for FFA or spoken to the application of an alternative no significant risk level (ASRL) that might be available for it under longstanding provisions of the Proposition 65 regulations that were designed to help address chemicals like FFA and acrylamide that arise as byproducts of cooking. Such regulatory actions might aid companies in determining the need to warn in order to avoid the kinds of bounty hunter claims that are already beginning to arise on foods and beverages that contain FFA.
In other words, as usual, the California Attorney General and OEHHA are content to watch the farce of Proposition 65 play itself out yet again.