The California Office of Environmental Health Hazard Assessment (OEHHA), which oversees the state’s Proposition 65 program, is on the verge of finalizing an exemption from warning requirements for chemicals, such as acrylamide, “created by and inherent in the processes of roasting coffee beans or brewing coffee.” The new regulation, which recently was sent to the state’s Office of Administrative Law (OAL) for a final review, would establish a new provision (Section 25704) entitled “Exposures to Listed Chemicals in Coffee Posing No Significant Risk.”
Proposed in June 2018, the exemption embodies OEHHA’s response to widespread backlash against a California court decision in favor of the plaintiff, the Council for Education and Research on Toxics (CERT), holding that dozens of coffee-serving defendants in the state violated Prop 65 by failing to provide warnings about exposure to acrylamide, despite the fact that the bulk of the science shows that drinking coffee does not increase cancer risk. CERT is seeking millions of dollars in fines against the coffee roasting/retail defendants, though the penalty phase of the litigation has been put on hold pending resolution of the exemption rulemaking. Finalizing the exemption, however, may not be the end of the case, as a CERT challenge to the legal sufficiency of the exemption also is pending in California court.
The OAL has until February 19 to review the regulation, and its accompanying “final statement of reasons,” including response to comments, and decide whether to accept, reject, or request further information from OEHHA.