As previously reported by Poole & Shaffery, the Council for Education and Research on Toxics ("CERT"), A.K.A. Raphael Metzger of the Metzger Law Group, filed a lawsuit against more than 90 coffee sellers alleging their coffee "contains anywhere from 4 to well over 100 times more acrylamide than the No Significant Risk Level ("NSRL") for acrylamide established by California's Office of Environmental Health Hazard Assessment ("OEHHA"). On January 14, 2016, the California Court of Appeal denied a petition for a writ of mandate filed by the coffee-selling defendants in Council for Education and Research on Toxics v. Starbucks Corp., et al. [Super. Ct. L.A. County, No. BC435759], who sought review of a trial court's September 1, 2015, ruling that they did not meet their burden of establishing that acrylamide in coffee poses no significant risk of cancer.
OEHHA, which is part of the California Environmental Protection Agency, is charged with implementation of Prop 65 and has adopted regulations establishing NSRLs, exposure levels at which specific listed chemicals are deemed to pose no significant risk. (Cal. Code Regs., tit. 27, §§ 25701 et seq.) However, of the over 800 substances that are on the list of chemicals known to cause cancer, birth defects or other reproductive harm, OEHHA has only developed NSRLs for about 300 chemicals. A business has "safe harbor" from Prop 65 warning requirements if exposure to a chemical occurs at or below these NSRLs. Unless there is a NSRL creating a "safe harbor," a business will only be exempt from the warning requirement of Prop 65 if a quantitative risk assessment conducted by the business establishes that exposure to a chemical would not result in more than one excess case of cancer in an exposed population of 100,000 — assuming a lifetime exposure of 70 years at the level in question. (Cal. Code Regs., tit. 27, § 25703, subd. (b).)
Although OEHHA established an NSRL for Acrylamide of .2mg, defendants argued that a Prop 65 compliant warning was unnecessary because studies show that consumption of coffee does not increase the risk of cancer. According to the Court defendants presented evidence of an assessment of the mixture of coffee rather than an assessment of the acrylamide in the coffee. Because coffee itself is not a substance known to the State of California to cause cancer, defendants assessment was insufficient to satisfy the statutory requirement of determining the level of risk of cancer from exposure to acrylamide, the chemical known to the State of California to cause cancer, in the coffee. Accordingly, the trial court rejected defendants' affirmative defense, ruling much of the defendants' risk assessment lacked scientific support and that defendants had not established a degree of risk under a "quantitative risk assessment;" which is "the only type of risk assessment utilized by the relevant scientific community to assess the risk of a carcinogen in a mixture."
On October 9, 2015, the trial court granted a stay as to the trial proceedings in order to allow defendants to have the opportunity to prepare a petition for a writ of mandate seeking appellate review of the trial court's denial of defendants affirmative defense. According to defendants, they presented extensive evidence in support of their affirmative defense. Further, defendants contend that the argument that defendants had to present evidence addressing the carcinogenic properties of acrylamide itself, as opposed to acrylamide as it exists in coffee is without merit, particularly in light of the fact that CERT's complaint concerns the alleged carcinogenetic properties of acrylamide in coffee. However, on January 14, 2016, the California Court of Appeal, Second Appellate District denied defendants petition for writ of mandate.