Over the past several months Poole & Shaffery 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]. On April 20, 2016, CERT scored another major victory in its lawsuit when the trial court granted a motion for summary adjudication as to CERT's prima facie case, holding that CERT satisfied its burden of proving that there is no triable issue of fact as to whether the defendants intentionally exposed consumers to acrylamide in coffee.
As previously reported, this case was bifurcated to allow the trial court to hear arguments relating to the three of the defendants' affirmative defenses as part of the first phase. During the first phase, the defendants argued they were not required to place Proposition 65 compliant warnings on their products because exposure to acrylamide in defendants' coffee poses no significant risk of cancer. However, the trial court disagreed with the 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. Although the defendants challenged the trial court's ruling by filing a petition for a writ of mandate, the California Court of Appeal denied their writ petition, ruling that the defendants did not meet their burden of establishing that acrylamide in coffee poses no significant risk of cancer.
In its motion for summary adjudication, CERT argued that 66 defendants had stipulated to seven facts that entitled it to summary adjudication of its prima facie case for violating Proposition 65 by exposing Californians to acrylamide, a chemical known to the State of California to cause cancer, without first warning them. Specifically, the defendants stipulated to the following: (1) that they were corporations, limited liability companies or associations; (2) that employed more than 10 employees; (3) that roasted, packaged, distributed, or sold coffee in California; (4) that they knew that acrylamide is a chemical listed as one that is "known to the state to cause cancer"; (5) that they did not warn California consumers that acrylamide could cause cancer; (6) that all coffee contains acrylamide; and (7) that they knew that at least some coffee that they roasted, packaged, distributed, or sold would be consumed by individuals in California.
Pursuant to section 25249.6 of the California Health and Safety Code, no person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual. Accordingly, the oppositions by the Retailer Defendants and the Roaster Defendants focused on the fact that they did not knowingly and intentionally expose any individual to a chemical known to cause cancer, i.e. acrylamide.
The Retailer Defendants argued that imposing liability on them in this case would be inconsistent with the intent of Proposition 65 because acrylamide is an unintended byproduct of the roasting process, and the Retailer Defendants are "simply passive conduits of this natural byproduct of roasted coffee beans," and "they have not engaged in the type of 'culpable human activity' that Proposition 65 addresses." In a similar opposition, the Roaster Defendants argued that Proposition 65 was intended to apply to chemicals that were "intentionally 'added' to the environment" and that CERT failed to establish that the Roaster Defendants intended to create acrylamide or that coffee can be roasted in a way that contains no acrylamide whatsoever. In fact, the only evidence in the record is to the contrary."
However, the trial court was unpersuaded by the defendants' oppositions. While the trial court acknowledged that meaning of the term "intentionally," as it is written in the statute has never been addressed; it ruled that defendants "intentionally exposed consumers to acrylamide if the consumer's ingestion of acrylamide was the very purpose for which the coffee was produced, distributed or the ingestion of acrylamide in coffee was known to substantially result from the consumption."
With this most recent ruling CERT seems assured to prevail against the coffee industry. All that remains is to determine if any defendants have viable affirmative defenses that have not already been adjudicated by the trial court. However, in light of how this litigation has progressed, it seems unlikely that the defendants will be raise any successful defenses.