On April 12, 2018, we wrote about the decision in Council for Research on Education in Toxics v. Starbucks, in which a California Superior Court judge rejected the evidence presented by coffee roasters and retailers to demonstrate that exposures to acrylamide in coffee were exempt from Proposition 65’s warning requirement. With a motion for permanent injunction to be heard on July 31, despite widespread criticism of the basis of the court’s ruling (see, e.g., articles from NPR, CBS News, Self Magazine, and WebMD), it appeared that Prop 65 warnings for coffee would soon proliferate in California.
On June 18, 2018, the California Environmental Protection Office of Health Hazard Assessment (OEHHA) responded to the court’s ruling by proposing a regulation that would state that exposures to Proposition 65 listed chemicals in coffee, such as acrylamide, that are produced as part of the processes of roasting and brewing coffee, pose no significant risk of cancer.
The Agency’s rationale for exempting chemicals in coffee from Prop 65
The Initial Statement of Reasons for the proposed regulation reviewed the findings of the International Agency for Research on Cancer’s (IARC) Monograph on Coffee, Mate, and Very Hot Beverages and American Cancer Society statistics for California, to conclude that coffee reduces cancer risk:
In total, there is moderate or strong evidence that coffee either reduces risk or does not affect risk of cancers that account for 43 percent of cancers diagnosed in women and 29 percent of cancers diagnosed in men in California. There was also moderate evidence that coffee drinking reduced the risk of colorectal adenoma, a precursor lesion for a cancer that accounts for 6 percent of cancer diagnoses. Consistent results are found when US National Cancer Institute statistics for cancer diagnoses are used. Coffee drinking was not found to increase or probably increase any types of cancer in men or women.
OEHHA contrasted the complex mixture of chemicals in coffee from other complex mixtures that have been found to be carcinogenic to humans, including tobacco smoke, diesel engine exhaust, and alcoholic beverages, and pointed to mechanisms by which various anticarcinogens in coffee may produce such distinctions. Notably, the proposed exemption applies to all chemicals in coffee that are created as a result of the roasting or brewing processes, not just acrylamide, which was the subject of the CERT litigation.
OEHHA has set a public hearing for August 16, with the public comment period to close by August 30. There is no express timetable for consideration of the public comments and proposal of a final regulation at this point.
Implications for the Regulation
OEHHA clearly had the court’s ruling in mind as a basis for proposing this exemption. According to the agency:
The effect of [the court’s] ruling is that exposures to acrylamide in coffee may require Proposition 65 warnings. OEHHA understands that this proposed regulation, if adopted, may cause businesses to ask courts to modify consent judgments or to seek reconsideration of court rulings and may result in businesses that are voluntarily providing warnings to choose not to do so.
It is too early to determine how this regulation, if adopted, will affect the litigation. Because OEHHA intended for the regulation to serve as a basis for reconsideration, it would appear to be a sound legal basis for such an outcome, which we expect the defense to press vigorously. While the court will hear CERT’s request for a permanent injunction on July 31, it has not yet set a date for the resumption of the trial on CERT’s claim for civil penalties.
Interestingly, OEHHA’s approach of addressing cancer risk from coffee containing acrylamide and other carcinogens–as opposed to an abstract consideration of the amount acrylamide in coffee to which consumers are exposed–was deemed by the court to be insufficient under OEHHA’s “no significant risk” regulations, when presented by the defense in the first phase of the trial. The rationale for this regulatory action by OEHHA appears to cast serious doubt on that legal analysis.
Companies not involved in the litigation who sell coffee in California may breathe a bit easier, knowing that there is at least a very open question whether follow-on litigation may be brought by CERT or others over exposure to acrylamide in coffee. We would hope that the Attorney General’s office will closely scrutinize any certificate of merit offered by a private enforcer in connection with a 60-day notice alleging exposure to acrylamide or other listed chemicals in coffee (including furfuryl alcohol), in light of OEHHA’s findings on the subject. And, hopefully, consumers can relax with their morning cup of Joe without fear that they are increasing their cancer risk.