Recent action taken by the U.S. Food and Drug Administration (FDA), the California Office of Environmental Health Hazard Assessment (OEHHA), and the U.S. Congress illustrate active resistance to state labeling laws that conflict with science-based nutrition information, including California’s Safe Drinking Water and Toxic Enforcement Act, better known as Proposition 65. Poole Shaffery has extensively reported on Prop. 65 regulations over the past year. A recent development has one Plaintiff’s firm up in arms.

Coffee has been targeted by Prop. 65 enforcers because of acrylamide, a chemical produced as a by-product from roasting coffee beans. Studies have shown mixed results about the link between acrylamide and cancer. However, OEHHA stated coffee is safe to drink based on the results of more than 1,000 studies that found no substantial evidence linking coffee to cancer. These studies in part led the OEHHA to adopt a new regulation that would create a specific exemption for exposure to acrylamide as well as other Prop. 65-listed chemicals that are present in coffee as a result of the roasting process.

Section 25249.6 of Prop. 65 requires businesses to provide clear and reasonable warnings before exposing consumers to any of nearly 1,000 chemicals that have been identified by California as causing cancer or reproductive toxicity. However, exposures that pose “no significant risk of cancer” are exempted from the warning requirement under section 25249.10 of the statute. The regulation would establish as a matter of law that exposures to acrylamide created during the roasting process, pose no significant risk of cancer, thereby exempting businesses in the coffee industry from warnings.

The Council for Education and Research on Toxics (CERT), a small nonprofit group, is set to challenge the state's regulation in court. According to Raphael Metzger, the group's attorney who has a long standing history of filing suit against Starbucks and 90 other coffee companies, states he will challenge the regulation and seek retroactive civil penalties. In fact, CERT is seeking millions of dollars in fines against coffee roasting defendants. In 2018, attorneys raked in $27.25 million from Prop. 65 settlements.

In the meantime, we can drink that grande latte in peace, knowing California has bigger fish to fry than alarmist cancer warnings not backed by the scientific community.