TOXIC TORTS: CALIFORNIA TO REQUIRE CANCER WARNING ON COFFEE

Coffee in the state of California must carry a cancer warning, ruled Hon. Elihu Berle, on March 28, 2018, in the matter ofCouncil for Education and Research on Toxics v. Starbucks Corp., et al. [Super. Ct. L.A. County, No. BC435759]. In rejecting Starbucks’ argument that a state law meant to protect consumers shouldn’t apply to them, Judge Berle ruled that the Defense didn’t offer evidence that there is a health benefit to the consumption of coffee and failed to establish that there is a safe level of the chemical acrylamide in its product. Under California’s Proposition 65, acrylamide is listed as a carcinogen and products containing it must be labeled as such. The proposed ruling is anticipated to become the final order of the Court.

The ruling comes after an eight-year battle waged by Council for Education and Research on Toxics (“CERT”), A.K.A. Raphael Metzger (“Metzger”) of the Metzger Law Group, against more than 90 coffee roasters and retailers alleging that the acrylamide contained in their coffee poses a risk of causing cancer in consumers. The litigation comprised of a two-phase trial. A third phase, to determine civil penalties, will be scheduled if the parties don’t settle. According to CERT’s counsel, at least 13 of the defendants settled prior to this decision and agreed to provide a warning, including 7-Eleven.

At this second-phase of the trial, Starbucks had the burden of proof to establish a so-called alternate significant risk level. Defendants argued that acrylamide is naturally formed through the coffee-making process to render it palatable, the level commonly used is backed by scientific evidence, coffee should be considered safe under the law, and that the health benefits of coffee essentially outweigh the risk.

In an outright rejection of the Defense’s scientific evidence, Judge Berle ruled that experts for the coffee companies did not calculate an alternate significant risk level by means of any valid risk assessment. Rather, their experts did an assessment of acrylamide, but not of acrylamide in coffee. Judge Berle described the testing methods used by Defense experts as “unreliable and inadmissible” because the methods were a novel technique not generally accepted by the scientific community.

According to Metzger, Defendants have until April 10, 2018, to file objections to the proposed decision. Pending finalization of the Order, Metzger intends to move for a permanent injunction. A judge will then help decide what the penalties and remedy should be, if companies don’t settle before then. Civil penalties range up to $2,500.00, per violation, per day, over the course of the eight-year litigation.