Chances are that if you live in or have visited California, you have seen conspicuously placed “WARNING” signs notifying you that a product you are consuming or a location you are entering “contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.”
Now, following a March 30, 2018, proposed statement of decision in the Los Angeles Superior Court case Council for Education & Research on Toxins v. Starbucks Corp., cancer-warning labels may need to be added to coffee under Proposition 65, California Health & Safety Code section 25249.6 et seq.
Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to inform consumers about potential exposure to harmful toxins identified in a list published annually by California’s governor that are allegedly known to cause cancer or birth defects when exposed to in sufficiently high doses. (Cal. Health & Safety Code §§ 25249.6, 25249.8, 25249.14.) The list contains nearly 1,000 chemicals commonly found in consumer products, such as lead, which naturally exists in chocolate at low levels. The recent Los Angeles decision involves the chemical acrylamide, a listed allegedly cancer-causing chemical, which is a by-product that allegedly forms in the process of roasting coffee beans.
In the proposed statement of decision, the Court analyzed whether sellers of ready-to-drink coffee were exempt from the requirements of Proposition 65 under the “Alternative Risk Level” affirmative defense. (Cal. Health & Safety Code § 25249.10(c); Cal. Code of Regulations §§ 25701, 25703.) To establish the defense, the coffee sellers were required to prove that:
- “[S]ound considerations of public health support an alternative level” for exposure to acrylamide in their coffee products;
- Such an “alternative level” is derived from a “quantitative risk assessment”; and
- “Assuming lifetime exposure” to the products, the exposure of acrylamide from the coffee products is below the “alternative level”
After analyzing the evidence at trial, the Court held that the coffee sellers had failed to prove the Proposition 65 defense because their experts performed a quantitative risk assessment of only the chemical acrylamide, and not an assessment of acrylamide as found in coffee specifically. In ruling against the coffee sellers, the Court reasoned that in failing to perform a qualitative risk assessment for their individual coffee products, “[d]efendants failed to satisfy their burden of proving by a preponderance of the evidence that consumption of coffee confers a benefit to human health.”
According to the Office of Environmental Health Hazard Assessment, acrylamide is not only found in coffee and can form in a variety of foods when fried or baked, such as potato chips and roasted asparagus. The recent ruling out of the Los Angeles Superior Court therefore demonstrates the potentially far-reaching impact of Proposition 65 on businesses of various kinds and furthers the ubiquity of cancer-warning labels throughout California.
Local and out-of-state businesses that manufacture products that are distributed or sold in California should be aware of copycat lawsuits that could flow from this decision and the risks of Proposition 65 litigation generally. Proposition 65 carries both mandatory plaintiff’s attorney fees and civil penalties of up to $2,500 per day per violation for businesses that do not provide appropriate warnings. (Cal. Health & Safety Code § 25249.7(b)(1), (k).) In 2017 alone, there were 340 Court-approved settlements for a total of $12,993,190 in attorney-fee awards and 348 private settlements for a total of $6,493,172 in attorney-fee awards. Yet the civil penalties in those settlements constituted only a small fraction of the total settlement amount.
The firm’s litigators in our Long Beach, California, office are experienced in representing companies doing business in California, helping them to defeat or efficiently resolve notices of Proposition 65 violations.
 https://oehha.ca.gov/proposition-65/proposition-65-list (last updated Dec. 29, 2017).