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TOXIC TORT: COFFEE ACRYLAMIDE CASE SENT BACK TO JUDGE WHO FOUND THAT COFFEE INDUSTRY FAILED TO PROVE SAFE-ALTERNATIVE

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In response to peremptory challenges filed by the State and the National Coffee Associations, Los Angeles County Superior Court Judge Carolyn B. Kuhl has ruled that fellow complex civil Judge Elihu M. Berle shall hear causes of action alleged against the Office of Environmental Health Hazard and Assessment contending that it illegally thwarted Judge Berle’s prior ruling by issuing a proposal stating that the chemical acrylamide in coffee does not cause cancer.

In CERT v. Starbucks, et al., BC435759 (L.A. Super.Ct., filed April 13, 2010), Judge Berle previously ruled that the coffee industry failed to prove that there is a safe, alternative risk level of acrylamide in coffee. This ruling has significant ramifications because it unlocked the recovery of civil penalties for the coffee industry’s failure to warn of the purported health hazard. Following Judge Berle’s ruling, the health hazard assessment office issued a rare proposal related to its own law; which states that coffee does not present a cancer risk. In response, California’s Second District Court of Appeal stayed the underlying case before the civil penalties phase could be conducted.

CERT then filed a second lawsuit, this time against the Office of Environmental Health Hazard Assessment, BC721153 (L.A. Super.Ct., filed Sept. 7, 2018), alleging that it interfered with Judge Berle’s authority and violated the separation of powers act.

In adopting her ruling, which deferred CERT’s lawsuit against the Office of Environmental Health Hazard Assessment to Judge Berle, Judge Kuhl relied on a document presented by the defense which represented that the validity of the proposed regulation would be “dispositive” of the underlying case already pending with Judge Berle. She further noted that the “rule-making” which lead to the proposed regulation was initiated in light of a determination made by Judge Berle. Judge Kuhl was not moved by the health hazard assessment office’s representation that the proposed regulation was not made in response to Judge Berle’s ruling but was instead raised because it is the lead agency in implementing the dispositive statute: the Safe Drinking Water and Toxic Enforcement Act of 1986.

This decision is understandably disappointing and clearly problematic. It creates a scenario where a dispute over the validity of a proposed regulation enacted by an appropriate regulatory office will now be overseen by the very same Judge that offered an inconsistent interpretation of the office’s regulation. Intuitively, it is hard to see a Judge agreeing that his own interpretation was incorrect.