California’s Office of Environmental Health Hazard Assessment today proposed a regulation state that exposures to Proposition 65 listed chemicals in coffee, such as acrylamide, and furfuryl alcohol that are produced as part of the processes of roasting and brewing coffee, pose no significant risk of cancer that if adopted would for all practical purposes nullify Los Angeles Superior Court Judge Elihu Berle’s April 12 decision that brewed coffee must include a Proposition 65 Warning.
The agency’s Initial Statement of Reasons for the proposed regulation reviewed the findings of the International Agency for Research on Cancer’s (IARC) Monograph on Coffee, Mate, and Very Hot Beverages and American Cancer Society statistics for California, to conclude that coffee reduces cancer risk.
The IARC report suggests there is moderate to strong evidence that coffee either reduces risk or does not affect risk of cancers that account for 43 percent of cancers diagnosed in women and 29 percent of cancers diagnosed in men in California. There was also moderate evidence that coffee drinking reduced the risk of colorectal adenoma, a precursor lesion for a cancer that accounts for approximately 6 percent of cancer diagnoses. Consistent results are found when US National Cancer Institute statistics for cancer diagnoses are used. Coffee drinking was not found to increase or probably increase any types of cancer in men or women.
At trial Judge Berle rejected similar evidence submitted by the coffee roaster defendants that coffee drinking was not found to increase any types of cancer in men or women.
The trial verdict caused a firestorm of controversy and was roundly criticized by dozens of news organizations such as NPR, Web M.D., The Los Angeles Times, The San Diego Union Tribune and Prop 65 News.
A motion for a permanent Injunction is scheduled for a hearing on July 31, 2018.
In its regulatory proposal, OEHHA compared the complex mixture of chemicals in coffee from other complex chemical mixtures that have been found to be carcinogenic to humans, including tobacco smoke, diesel engine exhaust, and alcoholic beverages, and explained that mechanisms used by various anti-carcinogenic compounds in coffee may produce such distinctions. OEHHA’s proposed exemption would apply to all chemicals in coffee that are created by the roasting or brewing processes, not just acrylamide, the carcinogen targeted by the plaintiffs in the CERT litigation.
Meanwhile, OEHHA has scheduled a public hearing on August 16, with the public comment period to close on August 30. There is no timetable set out for consideration of the public comments and proposal of a final regulation so far.
It is uncertain whether OEHHA’s proposed regulation, if adopted may cause the Los Angeles Superior Court verdict to be vacated or modified.
The proposed regulation, if adopted may also cause defendants to seek reconsideration of the Court’s previous rulings and encourage companies not posting warnings to continue to refrain from posting warnings.
At the very least, the regulatory proposal muddies the waters to such a degree that that the trial court may wait to see if OEHHA’s regulation is enacted, and possibly modify its findings, if the Court chooses to show deference to the agency.
In the meantime, the question remains, should coffee sellers include Proposition 65 warnings with coffee, or take their chances until OEHHA’s new proposal is enacted? Posting warnings would be the safer course of action to avoid litigation since it’s unclear what the trial court will do before the final phase of the trial has concluded.
It is also too early to determine how this regulation, if adopted, will affect coffee litigation in the short term. The proposal provides a strong basis for reconsideration of the trial court’s findings and sends a powerful message to the Court that its rulings missed the mark scientifically. However, there is no guarantee that the agency’s proposed action will sway an unpredictable judge.
While the court will hear CERT’s request for a permanent injunction on July 31. The trial court has not yet set a date for the final phase of the trial on CERT’s claim for civil penalties.
Coffee sellers that have thus far avoided the acrylamide in coffee litigation can take some comfort in knowing that OEHHA’s proposal may be the game changer they hoped for, and coffee drinkers can take some added comfort in knowing that the State of California has stepped forward to say that coffee does not present a significant risk of cancer.
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