We previously wrote about a regulation issued last year by the California Office of Environmental Health Hazard Assessment (OEHHA) exempting chemicals in coffee from Proposition 65’s warning requirement. The question then was what effect the new regulation would have on the long-pending industry-wide enforcement action brought by the Council for Education and Research on Toxics (CERT) over acrylamide in coffee. Well, we now have an answer.
The litigation, against approximately 75 roasters and retailers, was originally filed in 2011. Following two phases of trial on liability in 2014 and 2017, Los Angeles Superior Court Judge Elihu Berle had found that the defendants had failed to prove that acrylamide in coffee posed no significant risk of cancer or was otherwise exempt from the Prop 65 warning requirement. After the regulation went into effect, CERT filed a litany of motions asserting that the regulation was invalid under various theories. The defendants filed a motion for summary judgment arguing that the coffee regulation applied to the case and provided a complete defense to CERT’s claims. The defendants also filed a motion for judgment on the pleadings on essentially the same grounds.
After denying each of CERT’s motions regarding the validity of the regulation, Judge Berle granted the defendants’ motion for summary judgment, ending the decade long case. The court found it was undisputed that both elements of the regulation were met: acrylamide was added as a listed chemical on or before March 15, 2019, and was present in coffee as a result of roasting coffee beans.
In opposition to the defendants’ motion, CERT argued that the defendants had failed to rebut its arguments that the regulation was invalid. The court rejected this approach, explaining it was not the defendants’ burden to establish the validity of the regulation (or that it was not invalid). And, CERT had not itself established that the regulation was invalid.
CERT also argued that the regulation did not provide a defense for any exposure to acrylamide from what CERT coined “additives” in coffee, like chicory, because acrylamide in those additives was not present as a result of roasting or brewing coffee beans. The court rejected this argument as well, finding that exposure to acrylamide from additives was not at issue in the case. Those claims had not been pled in the complaints nor identified in CERT’s 60-day notices or certificate of merit; the case had been litigated over exposure to acrylamide from coffee; and the court based its prior liability determinations on exposure to acrylamide from roasting of coffee beans. The court explained that it would be inappropriate to find triable issues of fact based on a theory CERT had not pled, did not prosecute, and had not established in its prima facie case.
While CERT is almost certain to take an appeal, at least for now, the decade-long case that caused much attention nationwide is over. Let’s all cheers, with a freshly brewed cup of coffee.