Attorney of Counsel
It received plenty of coverage in the national press last March when Los Angeles Superior Court Judge Elihu Berle issued his tentative ruling in a recent Proposition 65 case against roasters and sellers of coffee that would effectively require a clear and reasonable warning that brewed coffee contains a chemical known by the state of California to cause cancer, because coffee contains acrylamide, a listed carcinogen. This had far greater potential than just a judgment against coffee companies. The private enforcer / bounty hunters might well argue that any business with ten or more employees that served coffee—whether a restaurant, a coffee shop, or an automobile dealer with a coffee-serving lounge—would be required to warn coffee drinkers that they were being exposed to a chemical known to the State of California to cause cancer.
But now, only six weeks later, the Office of Environmental Health Hazard Assessment (OEHHA), the Proposition 65 lead agency and promulgater of the enabling regulations, is seeking to effectively reverse this ruling and exempt acrylamide in coffee from the need for a warning. We will find out in the next few months whether OEHHA’s proposed regulation becomes final.
Proposition 65 makes it unlawful for a business with ten or more employees to expose an individual to a chemical “known to the State of California to cause” cancer or reproductive harm without giving a clear and reasonable warning. Many chemicals, many products, and many business are impacted by the statute. If a company is in violation, a “private party enforcer” (or “bounty hunter”) can file suit against the company for penalties, injunctive relief and, of course, attorneys’ fees.
In 2010, one of California’s Proposition 65 enforcer organizations, Council for Research and Education on Toxics (“CERT”), filed a Proposition 65 enforcement action against Starbucks and about fifteen other defendants seeking penalties and an injunction on the basis that the presence of acrylamide in roasted and brewed coffee requires a cancer warning under Proposition 65. CERT eventually added more than forty-five additional defendants, including coffee shops, coffee wholesalers, supermarkets, and others, contending that they all are required to provide warnings.
After years of pre-trial proceedings and in decisions issued after two lengthy bench trials, Judge Berle ruled against the defendants on their key defenses. In his two rulings, he ruled against the defendants on their First Amendment defense, their preemption defense, their “no significant risk level” defense and, in his most recent tentative ruling, their “alternative no significant risk level” defense. The meaning? When the ruling becomes final (after objections and arguments from counsel), the court will conduct one or two more trials to determine what penalties should be awarded to CERT and the State of California against the defendants, and what injunctive relief should be ordered with respect to warnings that must be provided in the future. And, of course, after that, the Court will hold hearings on attorneys’ fees awarded to CERT’s attorneys, which will be very high.
And the impact of this across the board could be enormous: Sellers and providers of coffee across the state, whether sellers of beans, coffee shops, grocery stores or even businesses who give free coffee to their customers, could face Proposition 65 enforcement actions if they also fail to provide warnings.
But wait! What does OEHHA say?
OEHHA can, and often does, set “safe harbor exposure levels” for listed chemicals, which are deemed levels of exposure exempt from the Proposition 65 warning requirements. For listed carcinogens, these are levels that OEHHA agrees pose no significant risk of cancer because they will cause no more than one excess case of cancer in an exposed population of 100,000, assuming lifetime exposure at the level in question. For listed reproductive toxicants, OEHHA set maximum allowable dose levels at 1/1000 of the no observable effect level. Companies who fail to provide a warning of exposures have the burden of proof that the levels are at or below the no significant risk level for carcinogens, or the maximum allowable dose levels for reproductive toxicants. This is a far more complex burden than that of plaintiffs, which only have to show a resulting exposure, and makes for an exceedingly expensive case for any defendant. And although several companies have urged the agency to do so in the past, never has it issued a regulation that all exposure to a chemical in a given medium (consumer product, air, water etc.), regardless of levels, poses no significant risk of cancer or reproductive toxicity.
But on June 15, for the first time, this is exactly what OEHHA proposed: a regulation that no exposure to acrylamide in coffee, regardless of the level, poses a significant risk of cancer. Specifically, the proposed regulation states as follows:
ARTICLE 7. NO SIGNIFICANT RISK LEVELS
§ 25704. Exposures to Listed Chemicals in Coffee Posing No Significant Risk
Exposures to listed chemicals in coffee created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.
In other words, OEHHA is planning to nullify Judge Berle’s proposed judgment that sellers and purveyors of coffee must provide a cancer warning.
What happens next: There is a public comment period for written comments from June 22 to August 30, and a public hearing on August 16 (details of both are available). It seems probable that a final regulation will be issued before the end of the year. And if it goes the way it seems to be going, selling or serving or selling coffee will not give rise to the need to provide a cancer warning.
We will keep you posted.