The Metzger Law Group has filed a lawsuit under the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) on behalf of the Council for Education and Research on Toxics (CERT), seeking an order to require coffee makers and retailers to warn consumers that coffee contains acrylamide, a chemical known to the state to cause cancer. CERT v. Brad Berry Co., Ltd., No. BC461182 (Cal. Super. Ct., Los Angeles County, Cent. Dist., filed May 9, 2011). The defendants include manufacturing companies, coffee shops and major food retailers.

Raphael Metzger and CERT have filed a number of Prop. 65 lawsuits, including claims against fast-food restaurants, for failing to warn consumers about the acrylamide in fried and baked potatoes. Acrylamide, formed when certain foods are roasted, baked or exposed to high-temperature cooking processes other than boiling or steaming, has been listed as a carcinogenic chemical in California since 1990, but was not discovered in many foods until 2002. Information about the Maillard chemical reaction that creates acrylamide in food appears in Issue 2 of this Update.

According to the complaint, tests have shown that a single serving of the defendants’ coffee “contains anywhere from 4 to well over 100 times more acrylamide than the No Significant Risk Level (‘NSRL’) for acrylamide established by California’s Office of Environmental Health Hazard Assessment (‘OEHHA’).” CERT contends that the defendants have violated Prop. 65 since June 2002 “by exposing millions of individuals within the State of California to acrylamide without first giving clear and reasonable warnings to said individuals that their coffee contains a chemical known by the State of California to cause cancer.”

Among other matters, CERT seeks a declaration that (i) the defendants are legally obligated to provide Prop. 65 warnings “on the containers of the coffee that they sell,” (ii) the primary jurisdiction doctrine does not apply to the case, (iii) the court “cannot and ought not defer this action to await potential or pending regulatory action” by OEHHA, and (iv) the plaintiff’s Prop. 65 claims are not preempted by federal law. The plaintiff also seeks injunctive relief and civil penalties “not to exceed $2,500 per day for each and every violation by each and every Defendant,” as well as attorney’s fees and costs.

OEHHA has adopted a maximum allowable dose level (MADL) for acrylamide as to its purported reproductive toxicity; the MADL, at 140 micrograms/day, took effect April 29.