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California Prop 65- Mercury Allowable Limits?

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AltonBrownFanClub

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Posted 24 May 2023 - 09:06 PM

I am wondering if anyone here has worked with California's Prop 65 rule.

We use imitation crab, salmon, and young tuna in our products.

According to FDA's Fish & Fishery Products Hazards and Controls, salmon and tuna are the only fish with mercury concerns.

We have preventive controls to limit that possibility. 

 

I just cannot find a value, product list, guideline or anything to determine if our products require the label.

Initially I thought we should test to make sure, but even then, what constitutes a reportable value?

 

If anyone has any insight, I would be glad to hear it. The links on CA.gov simply plopped me in front of the entire California Code of Regulations. I've been looking elsewhere, but haven't had much luck.

 

They're not making it easy.



Brothbro

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Posted 24 May 2023 - 09:39 PM

Hi AltonBrownFanClub, Prop 65 is a strange issue to learn about indeed. I didn't find much better information either, but it appears the limits are determined by "Safe Harbor Levels". If the exposure level in your food (I would guess a single serving of it) exceed those set in the list linked below, you would need a warning:

 

https://oehha.ca.gov...s-nsrls-maximum

 

However, if you look on this list, Mercury is not listed. Here are the rules if your chemical is called out by Prop 65 but does not have a value listed on the Safe Harbor list:

 

>What are Safe Harbor numbers?

To guide businesses in determining whether a warning is necessary or whether discharges of a chemical into drinking water sources are prohibited, OEHHA has developed safe harbor levels for many Proposition 65 chemicals.  A safe harbor level identifies a level of exposure to a listed chemical that does not require a Proposition 65 warning.   A business does not need to provide a warning if exposure to a chemical occurs at or below these levels. These safe harbor levels consist of No Significant Risk Levels for chemicals listed as causing cancer and Maximum Allowable Dose Levels for chemicals listed as causing birth defects or other reproductive harm. OEHHA has established more than 300 safe harbor levels and continues to develop more levels for listed chemicals.

 

>What if there is no Safe Harbor Level?

If OEHHA has not established a safe harbor level for a chemical, businesses that expose individuals to that chemical would be required to provide a Proposition 65 warning, unless the business can show that the anticipated exposure level will not pose a significant risk of cancer or reproductive harm. OEHHA has adopted regulations that provide guidance for businesses in calculating their own level in the absence of an OEHHA safe harbor level. Regulations are available at Article 7 and Article 8 of Title 27, California Code of Regulations.

Determining anticipated levels of exposure to listed chemicals can be very complex. Although a business has the burden of proving a warning is not required, a business is discouraged from providing a warning that is not necessary and instead should consider consulting a qualified professional if it believes an exposure to a listed chemical may not require a Proposition 65 warning.

 

(^from: https://www.p65warni...sked-questions)

 

It looks like you would need to prove somehow that the exposure to mercury in your product would not pose a significant risk of cancer or reproductive harm.


Edited by Brothbro, 24 May 2023 - 09:47 PM.


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AltonBrownFanClub

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Posted 25 May 2023 - 02:10 PM

@BrothBro, Thank you for the response. 

 

I'm glad to hear our interpretations are the same. I required the warnings on our products immediately, so I know we are in compliance there.

 

I think we will just have to stick with the warnings. I don't see any benefit of fighting this label and trying to prove otherwise.

It would mean a LOT of testing, and even still I I wouldn't be able to GUARANTEE it's mercury-free.



MDaleDDF

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Posted 25 May 2023 - 02:40 PM

Prop 65 is silly in many ways.   I understand the spirit of the thing, but basically everything just has a sticker on it now saying it causes cancer...



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Brothbro

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Posted 25 May 2023 - 03:41 PM

I agree it's all very convoluted and the end result is a warning on everything under the sun. I'm a former Californian and I'm not sure if Prop 65 did anything to increase consumer awareness about what they're eating. 

 

The final oddity in all this is this line in the Prop 65 FAQ:

"Although a business has the burden of proving a warning is not required, a business is discouraged from providing a warning that is not necessary and instead should consider consulting a qualified professional if it believes an exposure to a listed chemical may not require a Proposition 65 warning."

 

Sooo if you're caught between a rock and hard place like AltonBrownFanClub, they encourage you to engage in expensive testing/research to determine what a safe harbor level is for compounds that don't have one set by the state? Sounds like you're just doing the state's work for them! It's like they're trying to throw you a bone with that line by saying they don't want people arbitrarily putting a warning on everything, but slyly following it up with another regulatory burden.



AltonBrownFanClub

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Posted 25 May 2023 - 04:42 PM

Sooo if you're caught between a rock and hard place like AltonBrownFanClub, they encourage you to engage in expensive testing/research to determine what a safe harbor level is for compounds that don't have one set by the state? Sounds like you're just doing the state's work for them! It's like they're trying to throw you a bone with that line by saying they don't want people arbitrarily putting a warning on everything, but slyly following it up with another regulatory burden.

 

Exactly!

It's sad, really. I want to give consumers the best information I can.

If they provided me a threshold, I could have this handled by the end of the week.

 

Instead, they expect me to scour scientific publications, create an ongoing testing schedule, determine my own safe limits, and defend that for every location we operate in California. Then, at the end of the day, any inspector could disagree with my methods and put our company at risk.

 

It seems like the easy way out to just slap a label on it, but I don't really have any other choice.

 

While we are at it, why don't I just add 0.5% of each allergen by weight and label all of those too? Then we would have no liability, right?  :yeahrite:  (Kidding of course)





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