Starbucks Corp. has been granted a stay to appeal a ruling in a bench trial in Los Angeles that will determine whether its coffee products pose a cancer risk and should carry a Proposition 65 warning.
The company is seeking to reverse a ruling in the first phase of the trial that rejected the coffee defendants’ affirmative defense that the chemicals present in its coffee are not at a level that would pose a significant risk of cancer.
The lawsuit was filed in 2010 by the non-profit Council for Education and Research on Toxics (CERT) names Starbucks and dozens of other coffee providers, such as Dunkin’ Donuts, Green Mountain, Gloria Jean’s, Kraft Foods, J.M Smucker, Inc. and the Coffee Bean.
More than 70 other coffee sellers named in the suit have stipulated to be bound by the result of the bench trial.
The case went to trial at the end of 2014, after Los Angeles County Superior Court Judge Elihu M. Berle split the trial into three phases.
The plaintiffs prevailed in the first phase of the trial, when Judge Berle ruled the defendants failed to establish its defense that the carcino-gen acrylamide in coffee is below a level that would create a significant risk of causing cancer.Judge Berle’s ruling on the stay allows the Starbucks defendants to file a writ of mandate in the California
Second District Court of Appeals to reverse Berle’s ruling on the first phase of the trial.
Starbucks’ attorney, James M. Schurz of Morrison & Foerster LLP, told reporters that “issues of law in the case would ultimately be decided at the appellate level.”Despite Judge Berle’s ruling to allow the Starbucks defendants to file a writ of mandate in the Court of Appeal, the trial is set to move on to the second phase where the coffee defendants will mount their next defense, which will entail arguing for an alternative risk level for acrylamide present in coffee which Schurz attributes to the roasting of coffee beans.
A similar defense was key to the successful defense used in the Beech-Nut trial in 2013 which involved the presence of lead in fruit products.
While the alternate risk level was ultimately successful in the Beech-Nut trial, the calculation of a level for coffee, which is a mixture of many different chemical compounds poses a far more complex challenge.
At a pivotal hearing in April, CERT attorney Raphael Metzger argued that the experts brought by Starbucks, Green Mountain Coffee Co., Kraft Foods and J.M. Smucker Co. in support of their affirmative defenses had failed to calculate the risk level of acrylamide present in coffee or quantify how much acrylamide is in coffee.
Schurz defended his experts’ methodology, asserting that “coffee is a complex chemical mixture,” which he argues doesn’t pose a cancer risk to coffee drinkers.
He dismissed CERT’s assertion that the coffee companies must document the levels of acrylamide in isolation, as opposed to those present in coffee.
Schurz asserted evaluating acrylamide levels in isolation is absurd, noting that CERT’s complaint specifically alleges violations of Proposition 65 from acrylamide in coffee.To date, there have been no Proposition 65 trials that examined how to establish exposure levels from chemicals in complex mixtures.
There have been a few Proposition 65 cases that involved such mixtures, notably, litigation over second-hand smoke exposure and litigation involving polychlorinated Bispenols (PCBs).
However, in those cases are not instructive because most of the additional chemical compounds found in the mixtures were also carcinogens.
The coffee defendants have asserted that some compounds present in coffee may lessen the potential toxicity of acrylamide in coffee.In July 2013, Judge Berle denied a summary adjudication motion brought by CERT, determining that the lawsuit would boil down to a battle of expert witnesses.
CERT is represented by Raphael Metzger and Kimberly Miller of the Long Beach-based Metzger Law Group.
The coffee roasters, distributors and retailers represented by James M. Schurz, Michéle B. Corash and Robin S. Stafford and Miriam Vogel of Morrison & Foerster LLP. The case cited by this article is: Council for Education and Research on Toxics v. Starbucks Corp. Los Angeles Superior Court case number BC435759.
The Second Court of Appeals Case Number is: B267504.
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