Coffee Drinkers Beware!

April 11, 2018

A California Superior Court Decision has the potential of upending the coffee market nationwide and may require coffee shops to include a label warning customers of potential risks for cancer. The suit began back in 2010 when the Council for Education and Research on Toxics (CERT) filed suit against 19 defendants including several coffee selling companies such as Starbucks, 7-eleven, BP America, Dunkin, and Costco, to name a few.

CERT claims that the defendants’ ready-to-drink coffee “failed to provide warnings to consumers that the coffee sold contained high levels of acrylamide, a toxic and carcinogenic chemical” violating Proposition 65 that enacted California’s Safe Drinking and Water Enforcement Act of 1986 codified in California Health Code section 25249.6. That section reads:

No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.

CERT argues that under Proposition 65 acrylamide is known as a chemical to cause cancer since 1900 and that this chemical is produced in the process of coffee beans being roasted. They assert that defendants sell coffee that contains acrylamide. Section 25249.8 discusses the publication of the list of chemicals known to cause cancer or reproductive toxicity that fall under Proposition 65.

The defendants raised an “alternative significant risk level” defense which is an exception to Section 25249.10. Section 25701 outlines the procedure on determining the level of exposure of a chemical known to cause cancer “to be based on evidence and standards of comparable scientific validity to the evidence and standards from which the scientific basis for the listing of the chemical as known to the state to cause cancel.” In order to determine the level, a Quantitative Risk Assessment must be performed as described in Section 25703.

In its proposed decision, the court states that for the defendants to maintain their defense they would have to prove: 1) acrylamide was created by cooking or processing to make coffee safe or palatable, 2) show that public health justifies an alternative less strict risk level, and 3) present evidence as to what would be an appropriate alternative risk level. The court notes that the absence of intent to add acrylamide to the coffee is not a defense to liability under Proposition 65.

A trial was held to prove the Quantitative Risk Assessment. The court found that the defendants failed to satisfy their burden of showing the exposure of acrylamide in their coffee would be exempted under the Alternative Significant Risk level exemption. By failing to satisfy the exemption the defendants are in violation of Proposition 65 and will have to comply with its warning labeling requirements under Section 25249.6.

California already has a legal history with acrylamide. In 2007, fast food restaurants were required to post warnings about their French fires and paid penalties and costs for their earlier non-compliance. In 2008, the State’s Attorney General settled a lawsuit with Heinz, Frito-Lay, Kettle Foods, and Lance Inc. for their acrylamide levels in potato chips and French Fries. The companies agreed to reduce the levels of the chemical.

California is a large consumer market, so if this proposed decision becomes final, it could potentially reverberate across the entire United States’ coffee market. This can affect ready-to-go coffees at supermarkets, gas stations, and coffee shops. Moreover, acrylamide can be found in certain potatoes, baked goods, food packaging, canned foods, and tobacco smoke and those are not always labeled. Alternatively, there have been studies that indicate the positive health effects of coffee as well. The Food and Drug Administration has not yet made a finding on the cancer implications of acrylamide and the agency is still researching the connections. The FDA page on acrylamide lists more information. Given the potential impact of such a decision on labeling requirements, the added costs, and possibility of other scientific research, this case is bound to be appealed.

The Docket is available here: BC435759.

Image Source: REUTERS/Daniel LeClair

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