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Will Coffee Require Cancer Warnings in California? – And Other Proposition 65 Developments

By Aisha Keown-Lang

A California state judge will soon decide whether coffee will require Proposition 65 warnings. The lawsuit in question, filed by Council for Education and Research on Toxics (CERT) in 2010, claims that dozens of coffee suppliers and retailers failed to provide clear and reasonable Proposition 65 warnings for acrylamide, a Proposition 65-listed carcinogen that is formed during the coffee roasting process. If CERT succeeds, cancer warnings could be required on cups of coffee or shops that sell coffee, and coffee retailers could face high fines for failure to comply. Two defendants, BP West Coast Products and Yum Yum Donuts Inc. have chosen to settle and agreed to post warnings and pay fines of $675,000 and $250,000, respectively.

This enforcement action highlights the criticism that Proposition 65 has encountered for years. The law allows private citizens, groups, and attorneys to take businesses to court on behalf of the state, even if the accusers cannot prove they personally have been harmed. Successful plaintiffs (including those who reach settlements with alleged violators) are entitled to keep 25% of civil penalties imposed; under the statute, an alleged violator is subject to up to $2,500 in civil penalties per day of violation. Under a separate California law, successful plaintiffs are entitled to seek their attorneys’ fees. With these monetary incentives, Proposition 65 continues to come under fire for encouraging meritless lawsuits brought primarily for economic gain. Businesses frequently choose to settle rather than engage in a lengthy and costly court case.

In addition to placing a financial burden on businesses, settlements may result in warnings for products even when a health threat is not actually present. Critics of Proposition 65 say that the over-labeling of products reduces the impact of warnings on products that pose genuine health risks, undermining the purpose and effectiveness of Proposition 65. California has been frequently criticized for placing warnings on a large number of commonly used items and services, ranging from seaweed to backpacks to parking garages. Additionally, some critics worry that the Proposition 65 warnings do not convey the fact that there are relative risks. For example, a certain level of coffee consumption has been associated with net health benefits, and the level of acrylamide contained in a single cup of coffee is far below what most scientists consider a significant level affecting human health; persuading the public to avoid it could work against the public’s best interest.

Notice of Intent to List TRIM ® VX

The California Office of Environmental Health Hazard Assessment (OEHHA) has posted its intent to list TRIM ® VX as being known to the state to cause cancer under Proposition 65’s authoritative bodies listing mechanism. TRIM ® VX is a fluid that is frequently used in metalworking as a lubricant and cooling liquid. The National Toxicology Program (NTP) is a designated authoritative body for the identification of carcinogenic chemicals. The NTP identified TRIM ® VX as causing cancer in 2016 in a report titled Toxicology and Carcinogenesis Studies of TRIM® VX in Wistar HanRats and B6C3F1/N Mice (Inhalation Studies).

OEHHA is now requesting comments on the proposed listing of TRIM ® VX under Proposition 65. Comments must be received by 5:00 pm on February 26th and can be submitted here.

Proposed MADL for Metham Sodium

On January 26, 2018, OEHHA published its proposed Maximum Acceptable Dose Level (MADL) for metham sodium of 290 micrograms per day. Metham sodium, first listed as a reproductive toxicant in 1998, is an organosulfur compound which is used as a soil fumigant, pesticide, herbicide, and fungicide. It is one of the most widely used pesticides in the United States. Comments on the proposed MADL must be submitted by March 12, 2018 and may be submitted here.

Private Enforcement Activity

Private enforcement continues to be aggressive, with 135 Notices of Violation (NOVs) issued so far this year. In NOVs issued this last week, lead/lead compounds and the phthalates DEHP and DBP continue to be targeted. Environmental Research Center continues to be a prolific enforcer, targeting cadmium in two dietary supplements; the alleged violators were Healthy ‘N Fit International, Inc. and NOW Health Group Inc. One other food item was targeted: the Consumer Advocacy Group targeted ground cinnamon sold by Raley’s for containing lead and lead compounds. The remaining targeted items were household items, such as plastic sandals and backpacks, that came from a wide variety of companies including Staples, Inc., CVS Pharmacy, Inc,. and The Michaels Company, Inc.

This blog article was researched and written by Brown University Class of 2018 student Aisha Keown-Lang. Ms. Keown-Lang is studying biology and political science at Brown University with the goal of going into bioethics and public health. Her special interest in genetics stems from her research in the Li Lab at UCSF and the Gerbi Lab at Brown. After having worked with children in the Providence school system for nearly three years, her commitment to improving scientific literacy and expanding health services in underserved communities remains strong. Ms. Keown-Lang is currently a writer for Brown’s Science Cartoon Program (SciToons), which aims to communicate scientific research and ideas to a diverse audience.

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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.