Legal Insurrection readers will recall a California court ruled that coffee shops had a duty to warn patrons of the cancer hazard associated with a component of roasted coffee called acrylamide under the state’s notorious Proposition 65 rules.

During my day job as an environmental health and safety professional this week, I was asked to assess the cancer warning required for packages of coffee.  Typically, a label for chemical solutions is easy to develop.  However, my client also sells coffee packets as part of its business-oriented product lines, and such a product doesn’t typically require such a warning.

So, I poured myself a cup of Dunkin Donuts Original Blend and dialed the California Office of Environmental Health Hazard Assessment (OEHHA) to inquire exactly the nature of the labeling my client would require.  The vague and incoherent response from the bureaucrat I eventually talked to was astonishing.

I ended the call vowing to leave California at the earliest opportunity. Then, I culled some data, looked at the court case, and drafted an opinion about the contents of a potential label that would be compliant with Proposition 65.

It appears I may not have been the only one who placed a call to the regulating agency and our state representatives about the fallout from the court’s decision.  OEHHA officials have now proposed a regulation change to declare coffee doesn’t present a significant cancer risk, countering a recent state court ruling mandating cancer warnings.

California officials bucked a recent court ruling Friday and offered reassurance to concerned coffee drinkers that their fix won’t give them cancer.

The unprecedented action by the Office of Environmental Health Hazard Assessment to propose a regulation to essentially clear coffee of the stigma that it could pose a toxic risk followed a review of more than 1,000 studies published this week by the World Health Organization that found inadequate evidence that coffee causes cancer.

…If the regulation is adopted, it would be a huge win for the coffee industry which faces potentially massive civil penalties after recently losing an 8-year-old lawsuit in Los Angeles Superior Court that could require scary warnings on all coffee packaging sold in California.

Proposition 65 is a complex rule that drains California business of money. Enforcement is done via court cases that are brought by private agencies (think a merry band of green justice warriors) about 95% of the time.

Enforcement of Proposition 65 is carried out by civil lawsuits brought by public enforcers (the California Attorney General, city and county prosecutors) and private plaintiff’s attorneys (95% of cases). The civil penalties for failure to comply with Proposition 65 are steep –up to $2,500 per day per violation. Further, private enforcers, such as CERT [Council for Education and Research on Toxics], retain 25% of any civil penalties and can also recover their attorneys’ fees and costs, which strongly encourages private enforcement of the law.

The more money these groups get, the more cases are brought. And the madness continues.

For the first time in ages, California regulators have chosen wisely.  There may be hope after all.

Coffee….the greatest addiction ever.


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