Over the past months Poole Shaffery & Koegle, LLP has followed the lawsuit brought by the Council for Education and Research on Toxics ("CERT"), A.K.A. Raphael Metzger of the Metzger Law Group, against more than 90 coffee roasters and retailers alleging the acrylamide contained in their coffee poses a risk of causing cancer in consumers in Council for Education and Research on Toxics v. Starbucks Corp., et al. [Super. Ct. L.A. County, No. BC435759]. While back on April 2016, CERT scored a major victory in its lawsuit when the trial court granted a motion for summary adjudication as to CERT's prima facie case, in June 2016 the coffee industry as a whole scored a major victory when the International Agency for Research on Cancer ("IARC"), a part of the World Health Organization, re-evaluated acrylamide and determined it as not classifiable as to its carcinogenicity to humans
As previously reported, during the first phase of a bifurcated trial, the Court addressed defendants' affirmative defenses. Defendants argued they were not required to place Proposition 65 compliant warnings on their products because exposure acrylamide in defendants' coffee poses no significant risk of cancer. However, the Court disagreed with defendants, finding that they failed to present sufficient credible scientific evidence proving that the level of exposure to acrylamide in coffee poses no significant risk of cancer.
This particular battle was perhaps fought to soon as the IARC subsequently found that there is no credible scientific evidence to justify classifying acrylamide as a chemical which could potentially cause cancer in humans. The IARC classifies chemicals as being a member of one of four groups. The first group is reserved for substances which are considered carcinogenic to humans. The second group is made up of two subgroupings (2A and 2B). Substances in Group 2A are probably carcinogenic while those in Group 2B are possibly carcinogenic. The third group contains any substance deemed "not classifiable as to its carcinogenicity to humans." The fourth group contains substances which are probably not carcinogenic to humans. Although in 1991 the IARC considered acrylamide a chemical that is probably carcinogenic, it has now placed it in Group 3, meaning it is not classifiable as to its carcinogenicity in humans.
In the quarter of a century since the IARC initially classified acrylamide, the scientific community has developed methods for better and more accurate research into the potential links between acrylamide and cancer. In 2014, Nutrition and Cancer (a peer-reviewed medical journal covering research on the role of nutritional factors in causing or preventing cancer) published a review of studies of the relationship between acrylamide in humans and determined that out of the 26 studies, only 6 showed increased cancer risk with the highest acrylamide intake. Similarly, in 2015 the International Journal of Cancer found no increase in endometrial cancer risk among 768 non-smoking, postmenopausal women who had the highest blood levels of acrylamide. After reviewing a thousand such studies, in June 2016 the IARC determined that there was not adequate evidence regarding the carcinogenicity of coffee in humans.
It is unclear as to what effect, if any, this move by the IARC will ultimately have on the ongoing acrylamide litigation. However, it is certainly clear that recent scientific evidence calls into question the very foundation upon which CERT built its lawsuit against the coffee industry, that acrylamide in coffee can cause cancer in humans. Further, this should serve as a reminder to litigants to stay abreast of scientific developments and studies in order to put forth the best defense possible.