TOXIC TORTS: CALIFORNIA TO REQUIRE CANCER WARNING ON COFFEE
Coffee in the state of California must carry a cancer warning, ruled Hon.
Elihu Berle, on March 28, 2018, in the matter ofCouncil for Education and Research on Toxics v. Starbucks Corp., et al. [Super. Ct. L.A. County, No. BC435759]. In rejecting Starbucks’
argument that a state law meant to protect consumers shouldn’t apply
to them, Judge Berle ruled that the Defense didn’t offer evidence
that there is a health benefit to the consumption of coffee and failed
to establish that there is a safe level of the chemical acrylamide in
its product. Under California’s Proposition 65, acrylamide is listed
as a carcinogen and products containing it must be labeled as such. The
proposed ruling is anticipated to become the final order of the Court.
The ruling comes after an eight-year battle waged by Council for Education
and Research on Toxics (“CERT”), A.K.A. Raphael Metzger (“Metzger”)
of the Metzger Law Group, against more than 90 coffee roasters and retailers
alleging that the acrylamide contained in their coffee poses a risk of
causing cancer in consumers. The litigation comprised of a two-phase trial.
A third phase, to determine civil penalties, will be scheduled if the
parties don’t settle. According to CERT’s counsel, at least
13 of the defendants settled prior to this decision and agreed to provide
a warning, including 7-Eleven.
At this second-phase of the trial, Starbucks had the burden of proof to
establish a so-called alternate significant risk level. Defendants argued
that acrylamide is naturally formed through the coffee-making process
to render it palatable, the level commonly used is backed by scientific
evidence, coffee should be considered safe under the law, and that the
health benefits of coffee essentially outweigh the risk.
In an outright rejection of the Defense’s scientific evidence, Judge
Berle ruled that experts for the coffee companies did not calculate an
alternate significant risk level by means of any valid risk assessment.
Rather, their experts did an assessment of acrylamide, but not of acrylamide
in coffee. Judge Berle described the testing methods used by Defense experts
as “unreliable and inadmissible” because the methods were
a novel technique not generally accepted by the scientific community.
According to Metzger, Defendants have until April 10, 2018, to file objections
to the proposed decision. Pending finalization of the Order, Metzger intends
to move for a permanent injunction. A judge will then help decide what
the penalties and remedy should be, if companies don’t settle before
then. Civil penalties range up to $2,500.00, per violation, per day, over
the course of the eight-year litigation.