The California Office of Environmental Health Hazard Assessment (OEHHA) announced that a final ruling on a Proposition 65 exemption for carcinogens generated by the coffee brewing and roasting process would be delayed pending another comment period. The additional comment period, which concluded on April 2, focused on a modification to the wording of proposed Section 25704.
According to the proposal, the exemption would apply to only those carcinogens identified on the Proposition 65 list as of March 15, 2019. Therefore, it would not apply to carcinogens that are subsequently added to the Proposition 65 list, thereby excluding from the exemption potential newly discovered carcinogens that could be detected in coffee. The language in the clarification would read as follows (with the modification in italics):
- 25704. Exposure to Listed Chemicals in Coffee Posing No Significant Risk
Exposures to chemicals in coffee, listed on or before March 15, 2109 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.
OEHHA’s initial proposed exemption for carcinogens generated by the coffee roasting and brewing process was based, in part, on a report from the International Agency for Research on Cancer (IARC) concluding that coffee does not cause cancer and, for some cancers, actually reduces overall risk. That report, coupled with wide public criticism of a California court Proposition 65 decision requiring cancer warnings for acrylamide in coffee, galvanized OEHHA’s decision to draft the proposed regulation. The plaintiff in the acrylamide coffee case, the Council for Education and Research on Toxics (CERT), has since challenged the legality of the proposed exemption issued by OEHHA. The challenge is currently pending.
OEHHA’s modification to proposed Section 25704 unfortunately erodes the certainty that the originally proposed regulation offered to the business community. Companies who sell coffee will have to monitor the carcinogen listing process to evaluate whether a newly listed carcinogen may trigger warning obligations. And, of course, a newly listed carcinogen that may be present in coffee may invite new enforcement actions against these companies, notwithstanding the fact that IARC has concluded that coffee, itself, does not cause cancer.
In some circumstances, chemicals that are placed on the Proposition 65 list can also be removed at a subsequent date, or “delisted,” after a determination that the chemical does not meet the statutory and regulatory requirements for listing. For example, saccharin was designated as a carcinogen in 1989 based on studies that showed it caused bladder cancer in rats. It was later delisted in 2001when experts determined that the link between saccharin and bladder cancer in rodents could not be replicated in humans. Typically, a chemical can become delisted after a State Qualified Expert, state agency or petition by a member of the public prompts a re-assessment of the chemical. This pathway to delisting may be possible for newly listed carcinogens that may be present in coffee.
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