Three months after Los Angeles County Superior Court Judge Elihu M. Berle’s ruling last year against California coffee vendor defendants, and on the eve of the civil penalties phase of the trial, the state's Office of Environmental Health Hazard Assessment declared that chemicals created by the natural brewing process of coffee did not pose a significant risk of cancer. The rule goes into effect Oct. 1, 2019.

The new rule revived the defense of California coffee vendors in on-going “Prop. 65” litigation (Council for the Education and Research on Toxics v. Starbucks Corp., LASC, BC435759) and triggered a related lawsuit alleging misconduct by the Governor’s Office (Council for the Education and Research on Toxics v. Office of Environmental Health Hazard Assessment, LASC, BC721153 (filed Sept. 7, 2018).

As we previously reported last year in the CTD, the new rule was issued a few months after Judge Berle ruled in favor of the plaintiffs, finding that coffee vendors, including Starbucks, did not prove there was an alternate safe risk level to the chemical acrylamide in coffee. The plaintiffs contend that underCalifornia's Proposition 65 labeling law, all cups of coffee must carry a “Prop. 65” warning and that sellers must pay fines for millions of the beverages consumed since the lawsuit was filed. Specifically, Raphael Metzger is seeking penalties of up to $2,500 per coffee drinker per day over eight + years, since the lawsuit was filed on April 13,2010. If the regulation is determined valid bythe court, then no warning labelswould be put on coffee cups and nocivil penalties would be instituted.

At the heart of the current dispute is Judge Berle’s recent decision late August 2019 to allow coffee defense attorneys to have the regulation adjudicated as a defense. Plaintiffs contend that that because the coffee companies voluntarily dismissed their other affirmative defenses, they have taken two different positions and should be judicially estopped from asserting the regulation as a defense. Judge Berle disagreed that the defendants dismissed their alternative significant risk level defense of acrylamide. That issue went to trial, and the judge ruled against them. Defendants contend that it is a new legal theory that goes to the same defense. The new defense will be asserted by way of a supplemental or amended answer.

In his related lawsuit, Metzger alleges that lobbyists, the day of Berle's ruling last year in favor of the plaintiffs, set in motion a series of events that led to the new rule, which nullified Judge Berle’s ruling. The plaintiffs believe a directive came from the governor's office to stop the Court’s ruling and are seeking thousands of records in the lawsuit, which they believe will show such a strategy.