For our first substantive KelleyGreenLaw blog post, the recent court decision requiring Proposition 65 warning labels to be served with cups of coffee was an obvious choice. The case raises fundamental questions of the nature of “risk” and how it is assessed, as well as how and whether society should require affirmative warnings for exposure to chemicals that, while they may cause cancer or other harm at high doses, quite clearly do not pose any sort of meaningful risk based on everyday experience and common sense. As the case shows, there is plainly no bright line, though perhaps sometimes it is obvious when that line has been crossed….

In upholding the need for warnings served with your daily cup of coffee (at least if you purchase that coffee at Starbucks, Peets, or any of the other dozens of defendants), the California judicial system has missed (at least initially, pending reconsideration or appeal) an opportunity to impart a demitasse of rationality into the infamous Proposition 65 regulatory program. In fairness, it is not the job of the courts to save the state from the well-intentioned but now divorced-from-reality “Prop 65.” That job falls on the California legislature and regulators, who, despite some recent cosmetic changes to the warning requirements, continue to fail to address the fundamental problem with the program: the problem is not so much HOW to provide a warning, but WHEN such a warning is necessary and appropriate.

Ironically, when opining on the 1986 voter referendum (officially the Safe Drinking Water and Toxic Enforcement Act), a leading California newspaper scoffed at what it called the “exaggerated” claims of opponents, proclaiming that, if adopted, the law surely would “not lead to the banning of ordinary table salt or require warning labels on every apple sold or cup of coffee served in California.” By now, you have no doubt heard that this prediction has proved presciently false. On March 28, a California judge issued a preliminary ruling in Council for Education and Research on Toxics (CERT) v. Starbucks Corporation, et al., that businesses that serve coffee to the public must provide a warning that their java contains a chemical (acrylamide) known to the state of California to cause cancer. In a prior ruling, the judge found that defendants failed to demonstrate that acrylamide in coffee posed “no significant risk,” even though acrylamide only has been shown to cause cancer in lab rodents at levels thousands of times greater than one would ever find in a cup of coffee, or in any food for that matter. In fact, the science shows that drinking coffee is not associated with increased risks of cancer.

In the most recent ruling, the court rejected the defendants’ further contention that an “alternative significant risk level” (ASRL) should apply under a provision for chemicals in food produced by cooking necessary to render the food palatable and safe. The argument suggested an opportunity to rationalize, at least for food products, some of the more eye-rolling results of Prop 65. Acrylamide, which is not naturally present in coffee or a host of other food products (e.g., baked or fried starches, chocolate, etc.), is created by the Maillard reaction, which occurs naturally between amino acids and sugars at high temperatures. In light of this, the Prop 65 regulations provide a purported fix by exempting warnings for levels of chemicals that result from necessary cooking.

Unfortunately for your local California barista, the court found that while roasting coffee beans is necessary to make coffee palatable and reduce microbiological contamination, and that the acrylamide present in coffee is a result of the brewing process, the defendants nonetheless failed to establish “the minimum amount of acrylamide that might be necessary” to achieve these goals. Instead, the defendants argued that “acrylamide levels in coffee cannot be reduced at all without negatively affecting safety and palatability.” The failure to explain how acrylamide levels in coffee were the “minimum necessary” may have been the fatal flaw in the defendants’ case. In other words, the defendants had not established that current brewing techniques sufficiently minimized the levels of acrylamide to those unavoidably necessary to render the coffee palatable. Unanswered in the court ruling, however, is an explanation as to why the defendants’ argument was insufficient.

The court decision goes further, however, and asserts that the defendants also “failed to prove that coffee confers any human health benefits” and, therefore, “failed to satisfy their burden of proving that sound considerations of public health support an alternate risk level for acrylamide in coffee.” This holding is curious given that the regulation specifically identifies “necessary” cooking as a prime example of such a public health consideration. The court does not explain why any additional showing is necessary (leaving open for debate what level of cooking is “necessary”). Similarly, the court also would require that defendants use quantitative risk assessment to show “what would be an appropriate alternative risk level, taking into account the identified public health considerations.” However, the California agency already has made this finding when adopting the regulations: “whatever cooking method is chosen, the amount of cooking which is necessary to avoid bacterial contamination or to render the food palatable should provide a basis for the application of [an alternative] risk level.” In other words, the ASRL is to be based on whatever level of the chemical is present in the food as a result of necessary cooking. What more are the defendants supposed to do?

It is unclear why the court found it necessary to impose these additional conditions on the ASRL defense, other than the court’s recognition that the Prop 65 law is to be construed broadly to further its remedial purpose and intent to protect the public. Hence, the exemption “must be narrowly construed so as not to ‘frustrate the purpose of the statute which it implements.” The court’s approach, however, misses an opportunity to mitigate the more absurd results of Prop 65 with a shot of rationality and common sense.

While the defendants arguments made practical (and legal) sense, there is a logic to the court’s decision that a warning should be provided. While that logic may be consistent solely within the existing structure of the Prop 65 regulations, it does not change the well-established fact that coffee simply does not increase your risk of cancer, no matter what California would require businesses to say.

Ultimately, the coffee case highlights why it is imperative that California’s Office of Environmental Health Hazard Assessment (OEHHA), which oversees the Prop 65 program, must revisit the regulations governing when exposure to a listed chemical requires a warning, including with respect to chemicals formed as a result of necessary cooking of food and beverages. The status quo has resulted in a wild proliferation of warnings that render them essentially meaningless and consumers numb to the message. Worse yet, these unnecessary warnings crowd out meritorious warnings that are provided about actual risks. None of this does any good for public health or providing consumers with helpful and accurate information.

This is not to say that Prop 65 has not done some good and had some success stories. It is undoubtedly good that businesses now must think more about the chemicals in their products, and whether they are exposing customers to risks. Prop 65 has resulted in real risk reductions in the form of product reformulations and substitution of safer chemicals. But the vast majority of warnings and enforcement actions for failure to warn, brought almost exclusively by independent plaintiff groups, do not alleviate real risks but address violations that make sense only within the confines of Prop 65.

For the rest of us, coffee still does not cause cancer.

Trouble Brewing for Prop 65?