The anticipated issuance of a final Proposition 65 exemption for chemicals, such as acrylamide, "created by and inherent in the processes of roasting coffee beans or brewing coffee," has been delayed to allow for an additional comment period to address a modest clarification to the pending regulation. Earlier today, the California Office of Environmental Health Hazard Assessment (OEHHA), which oversees the Prop 65 program, announced a new (and brief) comment period until April 2 on wording changes that clarify the scope of listed chemicals covered by the proposed regulation.

Specifically, the new proposal would limit the exemption to chemicals listed by the state to cause cancer as of March 15, 2019, and therefore not apply to future chemicals added to the Prop 65 list. The move recognizes that OEHHA's assessment of the cancer risks associated with coffee consumption cannot account, of course, for potential newly identified carcinogens that may be found in coffee.

The modified language is provided in underline and strikeout below:

§ 25704. Exposures to Listed Chemicals in Coffee Posing No Significant Risk

Exposures to ~~listed~~ chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.

NOTE: Authority cited: Section 25249.12, Health and Safety Code. Reference: Sections 25249.6 and 25249.10, Health and Safety Code.

Proposed in June 2018, the exemption embodies OEHHA's response to widespread backlash against a California court decision in favor of the plaintiff, the Council for Education and Research on Toxics (CERT), holding that dozens of coffee-serving defendants in the state violated Prop 65 by failing to provide warnings about exposure to acrylamide, despite the fact that the bulk of the science shows that drinking coffee does not increase cancer risk. CERT is seeking millions of dollars in fines against the coffee roasting/retail defendants, though the penalty phase of the litigation has been put on hold pending resolution of the exemption rulemaking. Finalizing the exemption, however, may not be the end of the case, as a CERT challenge to the legal sufficiency of the exemption also is pending in California court.

For further information on the proposed exemption, please see my prior post from June 2018: https://www.kelleygreenlawblog.com/2018/06/california-acts-decaffeinate-cancer-warnings-coffee/.

California Prop 65 Coffee Regulation: A Modest Re-Brew