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OEHHA Finalizes Proposition 65 Warning Exemption for Coffee

By Grimaldi Law Offices Associate Jennifer Singh

On June 3, 2019, the California Office of Administrative Law approved a regulation adopted by the California Office of Health Hazard Assessment (OEHHA) exempting currently listed carcinogens created by roasting and brewing coffee from Proposition 65’s warning requirements. Title 27 of the California Code of Regulations, section 25704, states that “[e]xposures to chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.”

Although this is good news for the coffee industry, the exemption notably contains an exception and applies only to those carcinogens identified on the Proposition 65 list on or before March 15, 2019. This means that the exemption does not apply to carcinogens that are subsequently added to the Proposition 65 list. Thus, any newly discovered carcinogens detected in coffee will be excluded and may invite new enforcement actions in the future. Coffee selling companies are well advised to continue monitoring the carcinogen listing process to evaluate whether a newly-listed carcinogen may trigger new warning obligations.

OEHHA first proposed the coffee exemption in response to the public outcry surrounding a Los Angeles Superior Court ruling that coffee must carry Proposition 65 warnings. In advancing the exemption, OEHHA relied, in part, on a report from the International Agency for Research on Cancer (IARC), which concluded that coffee does not cause cancer and, for some cancers, actually reduces the overall risk.

The plaintiff in the Los Angeles coffee case, the Council for Education and Research on Toxics (CERT), also filed a separate action against OEHHA seeking to declare the coffee exemption invalid. That action was stayed as the court awaited the finalization of the regulation at hand. That case is ongoing, and most recently OEHHA sought a lift of the stay. With several issues left unresolved and potentially years of anticipated appellate review, the coffee industry should keep its eyes and ears open for all developments.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product regulation. For knowledgeable advice and in-depth analysis on your chemical regulatory compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

 

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Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.