Coffee roasters Starbucks Corp., Seattle Coffee Co., 7-11, Inc. and dozens of others roasters and retailers are denying allegations that coffee poses a cancer risk to coffee drinkers in a Proposition 65 bench trial underway in Los Angeles Superior Court. Los Angeles Superior Court Judge Elihu M. Berle will consider Starbucks’ three affirmative defenses to a lawsuit brought by the non-profit Council for Education and Research on Toxics’ (CERT) lawsuit, which contends Starbucks’ coffee contains enough acrylamide to exceed the Proposition 65 Safe Harbor level for the chemical.
CERT alleges Starbucks and the other roasters and retailers violated Cali-fornia’s Proposition 65 by failing to include clear and reasonable warning signs at their retail outlets.
In his opening statement, James M. Schurz of Morrison & Foerster LLP, argued that requiring a Proposition 65 warning on Starbucks coffee would be unconstitutional forced speech. Schurz also argued CERT’s Proposition 65 claims are preempted by the U.S. Food, Drug and Cosmetic Act. He emphasized that the acrylamide present in coffee presents no significant risk to consumers.
Schurz asserted the cancer risks of drinking coffee should be the criteria for evaluating risk, instead of considering acrylamide levels in isolation. Schurz said that Star-bucks’ experts would show that drinking coffee at typical levels does not increase cancer risk.
CERT’s complaint alleges a 12-ounce serving of Starbucks coffee contains acrylamide levels of between four to more than 100 times higher than the ‘No Signifi-cant Risk’ level of 0.2 micrograms per day established by California’s Office of Environmental Health Hazard Assessment (OEHHA).
Raphael Metzger, CERT’s attorney said the non-profit does not allege that coffee causes cancer, arguing
studies submitted by Starbucks’ to show that coffee is safe are beside the point.
“It’s not about whether or not coffee causes cancer or doesn’t cause cancer (…) Coffee is just the vehicle by which defendants are exposing Californians to acrylamide,” Metzger asserted.
But some scientists disagree. Dr. Takayuki Shibamoto, a Professor at the Department of Environmental Toxicology, University of California, Davis, said acrylamide just doesn’t form by itself. “It is one of the maybe two thousand different flavor chemicals formed in the Maillard Reaction.” According to Dr Shibamoto “if you have two chemicals, and you have to evaluate potential toxicity, then you have to discuss when they combine, and how do they react? Synergistic? Antagonistic?. You have to do those studies in order to know the actual toxicity,” Dr Shibamoto said.
Toxicologist F.J. Murray, Ph.D in his expert testimony for Starbucks, echoed some of Dr. Shibamoto’s ideas. He testified that the best method to evaluate the risk of the acrylamide in coffee is by reviewing the numerous scientific studies on coffee consumption.
“There are other substances in coffee that could interact with acrylamide and possibly increase the carcinogenic potential, or potentially reduce the carcinogenic potential, or do nothing,” he said. “It’s erroneous to assume that it’s not impacted at all by the over 1,000 chemicals in coffee,” Murray testified.
Metzger asked Murray if any scientific literature proves that the acrylamide in coffee is safe.
“Is there anything you’ve done that either proves or shows that coffee prevents the carcinogenicity of acrylamide?” Metzger asked.
Murray indicated he wasn’t aware of any.
Starbucks also submitted the expert testi-mony of Dr. Paolo Boffetta, former head of the International Agency for Research on Cancer’s (IARC) genetic epidemiology group. He testified several scientific studies demonstrate no link between coffee consumption and cancer.
Dr. Boffetta rejected the theory that the presence of acrylamide, or another other chemical, in coffee poses a cancer risk to consumers.
Since Proposition 65 was enacted in 1987 there have been only three trials involving food and beverage products. In two of the previous trials the outcome was decided by either determining the average consumption of a product, or whether the chemicals were exempted by Proposition 65’s naturally occurring exemption. In the Starbucks trial, the levels of consumption are more frequent than in previous trials because most coffee drinkers consume more than one cup a day, and tend to be more regular in their consumption. Because acrylamide is formed by a chemical reaction triggered by roasting coffee beans, Proposition 65’s naturally occurring exemption is not a factor in this case.
When Judge Berle denied CERT’s motion for summary adjudication last year, he observed the case would boil down to a battle of the expert witnesses, which has been the case in the majority of the twelve previous Proposition 65 trials. Several more experts are scheduled to testify before the conclusion of the trial.
The Council for Education and Research on Toxics is represented by Raphael Metzger of the Metzger Law Group.
Starbucks is represented by James M. Schurz, Michele B. Corash and Robin S. Stafford of Morrison & Foerster LLP. The case referenced by this article is: Council for Education and Research on Toxics v. Starbucks Corp., Los Angeles Superior Court Case No. BC435759).
“If you have two chemicals, and you have to evaluate potential toxicity, then you have to discuss when they combine, and how do they react? Synergistic? Antagonistic? You have to do those studies in order to know the actual toxicity.”
Dr. Takayuki Shibamoto
Professor at the Department of Environmental Toxicology, University of California, Davis
Coffee Consumption Statistics in the U.S.
Total percentage of Americans over the age of 18 that drink coffee 54%
Average size of coffee cup 9 oz
Total percentage of coffee drinkers who prefer their coffee black 35%
Total amount of cups of coffee (9 ounces) a coffee drinker consumes daily 3.1
Total number of U.S. daily coffee drinkers 100 Million
Total average of money spent on coffee each year by coffee drinker $164.71
Total percentage of coffee drinkers who drink 13 or more cups of coffee each week 24%
Total amount of U.S. coffee drinkers who claim to need a cup of coffee to start their day 60%
Total percentage of coffee drinkers who have a a cup within the first hour of waking up 68%
Total amount spent on specialty coffee in the U.S. per year. $18 Billion