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CA Prop 65 Coffee Issues Still Brewing

As has been widely reported, in May 2018, a Los Angeles Superior Court judge ruled that Prop 65 warning labels are required to be placed on “ready-to-drink” coffee products. Acrylamide, a Prop 65 listed chemical that allegedly is a carcinogen, forms during the coffee roasting process.  It is also a byproduct when foods containing starch, for example, potatoes and cereal grains are heated.

As the parties were gearing up for the damages phase of the trial, California’s Office of Environmental Health Hazard Assessment (OEHHA), the agency responsible for administering Prop 65, took action.  In June 2018, OEHHA proposed an amendment to its regulations that does not require a Prop 65 warning on coffee labels for acrylamide that results from the roasting process.  A public comment period and a public hearing on the proposed regulation just concluded in August. If the proposed regulation is passed, it would largely exempt coffee from Prop 65 cancer warnings. The proposed regulation does not, however, address the need for warning for exposures to listed chemicals that may occur if the chemicals are intentionally added to the coffee mixture or enter the mixture as contaminants in some way other than by the process of roasting and brewing.

The FDA has weighed in on the issue in support of the proposed regulation.  The latest research “does not support a cancer warning for coffee,” Food and Drug Administration Commissioner Scott Gottlieb said in a statement. Such a label “could mislead consumers to believe that drinking coffee could be dangerous to their health when it actually could provide health benefits,” Gottlieb said. Misleading labeling could also violate federal law, he said. “Strong and consistent evidence shows that in healthy adults moderate coffee consumption is not associated with an increased risk of major chronic diseases, such as cancer, or premature death,” Gottlieb said.

Coffee is no longer considered a possible cancer hazard by the International Agency for Research on Cancer (IARC), a branch of the World Health Organization that is the global authority on the science of potential carcinogens. Two years ago, the agency reassessed evidence from more than 1,000 human and animal studies and found the science didn’t support coffee being labeled as a cancer risk.  As readers of this space may recall, IARC is the one research group that has continued to identify glysophate, the herbicide in Monsanto’s Round-Up product that is currently the subject of a multi-billion dollar jury verdict that has spawned numerous additional lawsuits, as a carcinogen.

Other research has found that coffee may confer a variety of health benefits, such as reduced risk of heart disease and type 2 diabetes.

The coffee issue may provide additional support for several bills introduced in Congress that propose a uniform federal approach on labeling. 

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About this Author

Daniel Herling, product liability, attorney, Mintz Levin, Consumer Product Safety Privacy & Cybersecurity Class Action Health Care Enforcement & Investigations Product Liability & Complex Tort Complex Commercial Litigation

Dan is highly regarded for his defense of product liability cases involving consumer products and deep knowledge of California’s consumer protection regulations and laws. He skillfully handles litigation, including class actions, around California’s Unfair Competition Law, Consumer Legal Remedies Act, and Safe Drinking Water and Toxic Enforcement Act (Prop 65), among others. He has served as a defense counsel in over 3,000 product liability cases involving pharmaceuticals, medical devices, food, cosmetics, over-the-counter drugs, and food and products marketed as containing natural...