Coffee retailers may have found reprieve from having to issue Proposition 65 cancer warnings. On June 15, 2018, California's Prop 65 regulator proposed a dramatic new regulation that would exempt coffee manufacturers from Prop 65 liability for the presence of acrylamide arising during the roasting process.

This regulation would effectively reverse a striking recent court ruling that exposed all ready-to-drink coffee purveyors in California to Prop 65 warning liability. That ruling was issued less than three months ago.

The proposal from California's Office of Environmental Health Hazard Assessment (OEHHA) would clarify that the chemicals in coffee, produced as part of the processes of roasting coffee beans and brewing coffee, pose no significant risk of cancer.

Moreover, the regulation would counteract the impact of a recent court ruling that rejected arguments from the defense claiming precisely what OEHHA now proposes. In that case, plaintiff established the presence of acrylamide – a listed Prop 65 carcinogen – exceeding standard safe harbor levels in ready-to-drink coffee. Defendants could not meet a series of stringent tests to show an alternative safe level of acrylamide, so the court ruled they failed to escape Prop 65 liability.

The widely criticized ruling focused on technical readings of regulatory language divorced from the reality of coffee consumption and ignoring mountains of research regarding coffee's risks and benefits. OEHHA's proposed ruling – consistent with our prior assessment of the "coffee case ruling" – would acknowledge the reality of coffee consumption aside from Prop 65 regulatory language. If the regulation is adopted, coffee will not require a cancer warning label after all.

The specific language of the proposal is as follows:

§ 25704. Exposures to Listed Chemicals in Coffee Posing No Significant Risk Exposures to listed chemicals in coffee created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.

The proposed regulation directly counteracts the court ruling, and even goes one step further, by exempting the presence of chemicals beyond acrylamide that are formed during the coffee roasting process. In support of its proposal, OEHHA relies largely on the findings of the International Agency for Research on Cancer (IARC), that "there is strong evidence that coffee drinking induces antioxidant effects." Accordingly, coffee's unique mixture of carcinogens and anti-carcinogenic substances "should be viewed differently."

For this exemption to apply, the chemicals must arise by the "roasting [of] coffee beans or brewing [of] coffee." So, while the proposed regulation would largely exempt coffee from Proposition 65 cancer warnings, it does not address exposures to listed chemicals that may occur if the chemicals are intentionally added to the coffee mixture or enter the mixture as contaminants in some way other than roasting and brewing process – a rare and probably inconsequential issue.

For now, the proposed regulation is limited to coffee and its unique properties. But if it passes, OEHHA's regulation will immediately trigger intense speculation about similar exemptions for other food products currently embroiled in litigation over acrylamide or other listed chemicals formed by similar natural processes. At its further reach, this regulation could signal a key turning point in the enforcement of Proposition 65.

In forthcoming publications, we will analyze the way in which OEHHA's proposed regulation could signal a seismic shift in the current landscape of Prop 65 food litigation.

Those interested in commenting on the rule should note the following timeline:

  • Announcement of proposal and public comment period – June 15, 2018
  • Public hearing – August 16, 2018
  • End of written comment period – August 30, 2018