There’s disagreement among researchers over whether the alleged benefits of drinking coffee could be outweighed by any health hazards it may contain. The coffee industry argues that the research done so far is insufficient to prove that tiny doses of the chemicals in roasted coffee are a cause of cancer in people, as claimed by the Council for Education and Research on Toxics (CERT), a small non-profit group. Led by Starbucks, the industry argues not only that the level of one particular chemical in roasted coffee (acrylamide, a known carcinogen) isn’t harmful in minute doses and that any risks are outweighed by benefits.
The State of California’s Superior Court issued a decision in March 2018 that’s creating havoc in the coffee industry, all the way from the growers around the world to supermarkets and the thousands of coffee houses like Starbucks that sell coffee in California alone. If not reversed on appeal, that ruling will require every business that sells or serves coffee in California to label retail coffee and post visible public warnings where it is served, that it contains acrylamide.
The decision is based on California’s 1986 Safe Drinking Water and Toxic Enforcement Act, also known as Proposition 65 (Prop 65). It provides that sales of products containing any of over 900 chemicals known to cause cancer or birth defects, must be accompanied by warning labels or posters. To encourage enforcement of Prop 65, it specifically allows private citizens, non-profit groups, and attorneys to sue on behalf of the State of California in the hope of collecting part of the civil penalties the law imposes for failure to provide the required warnings.
With a 2017 California population of 39.5 million, it’s difficult to be a manufacturer or vendor that doesn’t sell products to California. Unless your company is one of the exceptions, it needs to have its plans for compliance in place or be ready now to start catching up.
Prop 65 Basics
Prop 65 requires “clear and reasonable” warnings to consumer purchasers of products sold in California before they can be exposed to any of over 900 listed chemicals on a list (“the Prop 65 list”). That list is kept by The California Office of Environmental Health Hazard Assessment (OEHHA), which is also the main Prop 65 enforcement agency, and which also has the power to adopt and modify regulations under it as necessary.
The list is made up of substances that OEHHA has determined can cause cancer or reproductive harm. The warning must be visible to the consumer before any exposure to the cancer-causing chemical. This enables Californians to make informed decisions about protecting themselves from unsafe chemicals. It also prohibits California businesses from discharging significant amounts of listed chemicals into sources of drinking water.
Safe Harbor Warnings and Upcoming Changes
Since Prop 65’s passage in 1986, manufacturers, distributors, and retailers of consumer products are currently providing consumers with some variation of the existing Proposition 65 “safe harbor” warnings, which generally state:
“WARNING: This product contains a chemical known to the State of California to cause cancer;” or “WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.”
The use of warnings like the above has been said to provide confirmation that a seller has sufficiently complied with the law. A three-year project to update and amend the regulations under Prop 65 was recently completed and takes effect this August. The new regulations specify that separate and varying safe-harbor warnings be based on the types of listed chemicals, the number of those chemicals, and the method of transmission. Among other things, they now require that the safe-harbor warning include a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline precede the warning. The new regulations further specify different safe-harbor warnings for products that contain only carcinogens, not only reproductive toxicants.
For example, the new safe-harbor warning for exposure to a chemical that is listed as both a carcinogen and a reproductive toxicant must now state:
“WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm.”
If the market for your product includes California, your business has another three months to catch up.
Howard Bader
Managing Partner
Ballon Stoll Bader & Nadler, PC
hbader@ballonstoll.com
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