The California Office of Environmental Health Hazard Assessment (OEHHA) has withdrawn a proposed regulation that would have exempted coffee from the Proposition 65 cancer warning requirement. It appears that the agency may re-propose the regulation following further review.
OEHHA first proposed the regulation on June 15, 2018, and subsequently completed its review period and responded to public comments. On January 10, OEHHA submitted the unamended proposed regulation and its statement of reasons to the Office of Administrative Law (OAL) for final review. The new provision would have been codified as Section 25704 and entitled “Exposures to Listed Chemicals in Coffee Posing No Significant Risk.” The proposed regulation would establish that acrylamide and 14 additional chemicals pose no significant risk of cancer in individuals who are exposed to them.
The proposed rule followed OEHHA’s announcement on June 15, 2018 that it intended to adopt a new regulation to carve out acrylamide that naturally occurs while roasting coffee beans from the requirement to provide clear and reasonable warnings under Proposition 65. The June announcement was a response to extensive criticism to the verdict that found that coffee retailers had violated Proposition 65 by not issuing warnings about exposure to acrylamide. The court in that case found in favor of the Council for Education and Research on Toxics (CERT) despite the absence of compelling evidence establishing a link between exposure to acrylamide and cancer. OEHHA cited its reliance on research conducted by the International Agency for Research on Cancer (IARC) that found that “coffee consumption is not classifiable as to its overall carcinogenity and is associated with reduced risk of certain cancers in humans.”
CERT continues to seek millions of dollars in fines from the defendants in the case. In addition, CERT is in the process of challenging the validity of the proposed exemption in a separate matter before a California court.
Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Proposition 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].