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. 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.
BACKGROUND:
In 2010, one of California’s Proposition 65 private party enforcer (or “bounty hunter”) 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.
More after the break.
