Proposition 65: Take Your Coffee and Hold the Cancer (warning)

In the bizarro world of Proposition 65, some sanity has been restored. On June 3, 2019, the California Office of Administrative Law (OAL) announced approval of a regulation proposed by the Office of Environmental Health Hazard Assessment (OEHHA) that exempts businesses from having to provide Proposition 65 (Prop 65) warnings for exposures to acrylamide and other listed chemicals that are created when coffee is roasted or brewed. I wrote about it almost one year ago here.

The finalization of the new regulation brings much relief to the business community involved with the roasting, packaging, distribution and selling of coffee in California. The new regulations were in response to a determination last year by a superior court judge that coffee retailers must warn customers under Prop 65 because Acrylamide – a byproduct that comes from roasting coffee beans – is listed as a carcinogen in California.

The approved regulation will be effective on October 1, 2019, when it will be published as section 25704 of Title 27 of the Code of Regulations. The final language of the regulation is as follows:

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

Exposures to 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.

Unfortunately, the Prop 65 coffee saga continues for the more than 80 businesses already named in the Council for Education and Research on Toxics v. Starbucks, et al. lawsuit currently pending in Los Angeles Superior Court. For these businesses, the fight is not over. The plaintiff, Council for Education and Research on Toxics (CERT), led by Raphael Metzger of Metzger Law Group, insists that the regulations are not legally valid and even if they were, the exemption does not apply retroactively. In other words, the plaintiff argues that “old” coffee is still cancerous and requires Prop 65 warnings. Apparently “new” coffee, post regulations, is somehow different? CERT is seeking $1 billion in fees ($2500 for each cup sold!).

Adam Regele, Policy Advocate