California’s coffee industry breathed a collective sigh of relief earlier this month when the state’s Office of Environmental Health Hazard Assessment (OEHHA), the agency charged with implementing Proposition 65, finalized a regulation that exempts coffee from the need to bear a cancer warning.[1]
California maintains a list of chemicals that it considers to cause cancer or reproductive harm.[2] California’s list includes common carcinogens such as alcohol, lead, diesel exhaust fumes, asbestos, and nicotine, but also some that you might not suspect, including aloe vera leaf extract and wood dust.[3] The state’s Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65, requires businesses to provide warning labels before “exposing” consumers to any of the nearly 900 listed chemicals.[4] Businesses that violate Proposition 65 could face penalties of up to $2,500 per day for each violation.[5] A warning is not required if the carcinogen exposure poses no significant risk of cancer.[6] Businesses, however, have struggled with the financial and evidentiary burdens associated with meeting this standard.
The difficulty of meeting Proposition 65’s no-significant-risk-of-cancer standard was highlighted in a March 2018 court decision holding that dozens of coffee-serving defendants in the state, including Starbucks, Green Mountain Coffee Roasters Inc., the JM Smucker Company, and Kraft Foods Global, violated Proposition 65 by failing to provide warnings about exposure to acrylamide, a listed chemical that is created by and inherent in the process of roasting or brewing coffee, even though the bulk of the science shows that drinking coffee does not increase cancer risk.[7]
In response to the court’s March 2018 decision, OEHHA issued a regulation that exempts coffee from the need to bear a cancer warning based on the results of more than 1,000 studies that found no substantial evidence linking coffee to cancer. OEHHA’s adoption of this exemption shows that the state can correct the absurdity that often results when implementing Proposition 65 (i.e., requiring warnings on products that pose no real risk to human health). Whether the state will continue to reign in Proposition 65 is unclear. What is clear is that without such action by the state, consumers will continue to be inundated with often-superfluous warnings.
We will continue to monitor and report on Proposition 65 updates, as we have in the past. Please subscribe to our blog to read our latest updates!
[1] Health and Safety Code § 25704.
[2] Title 27 California Code of Regulations § 27001.
[3] Id.
[4] Health and Safety Code § 25249.6.
[5] Health and Safety Code § 25249.7(b).
[6] Health and Safety Code § 25249.10(c).
[7] Council for Educ. & Research on Toxics v. Starbucks Corp., No. BC435759 (L.A. Super. Ct., filed Apr. 13, 2010).
