Following the court’s entry of a final decision on May 7, 2018, the plaintiff in the California Proposition 65 action against Starbucks and numerous other defendants is seeking an injunction ordering the defendants to sell coffee in California with a Prop. 65 warning for acrylamide.
Plaintiff’s motion for an injunction in Council for Education and Research on Toxics v. Starbucks, et al., Los Angeles Superior Court No. BC435759, was filed on May 8, and is set for hearing on July 17. This follows Judge Elihu Berle’s ruling finding that defendants did not establish that acrylamide in coffee was exempt from Prop. 65’s warning requirement under the “Alternative Significant Risk Level” defense, by demonstrating that acrylamide in coffee is created “by cooking necessary to render the food palatable” or safe for consumption. (Cal. Code Regs., tit. 27, § 25703, subd. (b)(1).
In prior rulings, Judge Berle rejected defendants’ arguments that exposure to acrylamide in coffee does not exceed the Prop. 65 safe harbor level for acrylamide of .2 ug per day, and that requiring defendants to sell coffee with a warning would violate their First Amendment rights.
While the defendants are expected to appeal those rulings, and there are a number of viable legal challenges, it is expected that Judge Berle will issue a permanent injunction.
Retailers and manufacturers who are contemplating selling coffee with a warning in California might consider using one of the following warnings. The first is a modification of the food warning under OEHHA’s new warning regulation, and the second is a warning that has been approved by Judge Berle in previous settlements in the coffee case.
WARNING: Consuming coffee can expose you to chemicals including acrylamide, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov/food
WARNING: Chemicals known to the State of California to cause cancer and reproductive toxicity, including acrylamide, are present in our coffee products. Acrylamide is not added to our products, but results from the roasting of coffee beans. As a result, acrylamide is present in our brewed coffee products. Your personal cancer risk is affected by a wide variety of factors. For more information regarding acrylamide see www.fda.gov. For more information about acrylamide and Proposition 65, visit www.oehha.ca/gov/prop65/acrylamide.html.
Consistent with the new warning regulations, if the first warning option above is used on products, it should appear in a box to set it apart from other label information. Neither warning requires the yellow triangle that is a feature of the new safe harbor regulation.