California Proposes Regulation that Proposition 65 Cancer Warnings Are Not Required for Coffee

Environmental Law  

June 18, 2018

On June 15, 2018, the Office of Environmental Health Hazard Assessment (OEHHA) proposed a new regulation to help clarify that Proposition 65 cancer warnings are not required for coffee products.  OEHHA’s proposed action is significant in light of ongoing litigation before the Superior Court for the County of Los Angeles, which deals with this very issue.

As we previously reported, the Superior Court for the County of Los Angeles held earlier this year that coffee retailers had failed to demonstrate that an alternative significant risk level should apply to ready-to-drink coffee on the basis that acrylamide is produced in the process of cooking coffee to make it palatable and to avoid microbiological contamination.  Judge Berle’s decision essentially meant that coffee manufacturers, distributors and retailers would be required to provide Proposition 65 warnings for coffee products or they may face potential Proposition 65 enforcement actions.  Although OEHHA’s proposed regulation is not yet final and the regulation will certainly face opposition, the new regulation would provide much needed clarity within the coffee industry regarding whether Proposition 65 cancer warnings are required.

California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986—or “Prop. 65”—prohibits businesses from exposing people to chemicals on the Prop. 65 List without providing “clear and reasonable” warnings.  Chemicals can be added to the Prop. 65 List based on California’s analysis of current scientific information and in situations where, as determined by other outside entities including the United States Environmental Protection Agency (USEPA) and the International Agency for Research on Cancer (IARC), a substance is a human carcinogen.  Prop. 65 violations also carry substantial legal implications as Prop. 65 authorizes monetary penalties of up to $2,500 per day per violation.  In the consumer product context, this means each sale or each exposure to a Prop. 65-listed chemical in a product can be considered a violation.  Moreover, alleged violators are also required to pay the reasonable attorney’s fees of private plaintiffs who bring Prop. 65 actions on behalf of the general public.

The chemical involved in the underlying coffee litigation is acrylamide, which OEHHA originally added to the Prop. 65 List in 1990 as carcinogenic.  Later, in 2011, OEHHA identified developmental toxicity and male reproductive toxicity as endpoints for acrylamide.  Acrylamide forms in certain plant-based foods when they are cooked or roasted under high temperatures.  Apart from coffee beans, acrylamide is also commonly found in starchy foods such as French fries, breads and some potato chips.

OEHHA’s proposed regulation is highly significant because the agency seeks to clarify that Prop. 65 cancer warnings are not required for coffee products.  Indeed, OEHHA’s proposed regulation states that drinking coffee does not pose a significant cancer risk despite the presence of chemicals such as acrylamide that are created during the roasting or brewing process.  OEHHA based this conclusion on a recent study by IARC that concluded that there is “inadequate evidence” that drinking coffee causes cancer.  Note, however, under OEHHA’s proposed regulation, if Prop. 65 chemicals are intentionally added to coffee in some way other than through the roasting or brewing process, a Prop. 65 cancer warning may be still required.  Note also that because acrylamide is also Prop. 65-listed for reproductive toxicity, this new regulation would not entirely eliminate the need for a Prop. 65 warning if the levels of acrylamide in coffee are above the safe harbor level set by OEHHA.

The public comment period on OEHHA’s draft regulation runs until August 30, 2018.  OEHHA is also holding a public hearing on the draft regulation on August 19, 2018.  Assuming the public comment period is not extended, and OEHHA does not make any changes based upon opposition, the regulation would be sent to the Office of Administrative Law for approval, and then adoption.

For assistance in understanding how this new development may impact your business, please contact us.