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COMMON SENSE LIKELY TO PREVAIL IN COFFEE’S FIGHT WITH PROPOSITION 65

COMMON SENSE LIKELY TO PREVAIL IN COFFEE’S FIGHT WITH PROPOSITION 65



The state of California is set to carve out an exemption for coffee in legislation that would have required companies and coffee shops to label it as carcinogenic. Doing so could bring Proposition 65 legislation as whole into question

A public hearing held on 16 August 2018 by California’s Office of Environmental Health Hazard Assessment (OEHHA), the lead state agency that implements controversial Proposition 65 legislation, took evidence on a regulation proposed by OEHHA that stated that exposure to chemicals in coffee poses no significant risk to health. The agency set a 30 August 2018 deadline for written comments.

The hearing followed a June 2018 ‘statement of reasons’ by OEHHA, proposing to add a new section to Title 27 of the California Code of Regulations, section 25704, stating that exposure to Proposition 65 listed chemicals in coffee that are produced as part of and inherent in the processes of roasting and brewing coffee ‘pose no significant risk of cancer.’

No warning is required

The statement of reasons said that ‘no cancer warning would be required for exposures to these chemicals if this proposed regulation is adopted.’

OEHHA’s action in June followed a ruling earlier this year by a judge in Los Angeles that Starbucks and many other coffee companies involved in lawsuits brought by the Council for Education and Research on Toxics had failed to warn customers about acrylamide in coffee.

In his ruling, Superior Court Judge Elihu Berle said the companies “had failed to prove that consumption of coffee confers a benefit to human health,” despite the vast preponderance of scientific evidence suggesting that coffee consumption is part of a healthy lifestyle, and that there is no evidence that coffee is carcinogenic. In fact, the bulk of recent independent studies suggest that coffee may have some role in preventing certain cancers.

The judge’s decision raised questions about whether legislation intended to ensure that consumers are informed about what is in the food and drink they consume is being used wisely or as originally intended. In response, the American Cancer Society said many, many studies had examined whether people who consume products containing acrylamide might be at increased risk of certain cancers, and most have not found any increased risk.

Shortly before the OEHHA hearing, the judge said that before entering an injunction requiring labelling on coffee, he would entertain arguments by Starbucks and other coffee companies that the rule being considered by OEHHA would make the warnings unnecessary.

Lawyers at Hogans Lovell said OEHHA’s action was significant because, if adopted, it would effectively exempt coffee products from Proposition 65. They noted that apart from acrylamide, OEHHA’s statement of reasons also covers other Proposition 65 carcinogens present in coffee, including acetaldehyde, benz(a)anthracene, benzo(b) fluoranthene, benzo(k)fluoranthene, benzo(a)pyrene, chrysene, dibenz(a,h) anthracene, formaldehyde, furan, furfuryl alcohol, indeno(1,2,3-cd)pyrene, 4-methylimidazole, naphthalene, and pyridine.

This mean that the regulation, once adopted, would exempt coffee products from Proposition 65 carcinogen warning requirements, to the extent that these carcinogens are also created by and inherent in the process of roasting coffee beans or brewing coffee.

However, the initial statement of reasons makes it clear that the regulation does not address exposures to listed chemicals in coffee that may occur if the chemicals are intentionally added to the coffee mixture or enter the mixture as contaminants through a means other than the inherent process of roasting coffee beans or brewing coffee.

The agency emphasized repeatedly that coffee is a complex mixture containing many chemicals in addition to the listed substances on the Proposition 65 list and discusses at length the World Health Organization’s International Agency for Research on Cancer’s (IARC) findings that coffee consumption is inversely related with cancer.

The initial statement of reasons noted the extent of the evidence, stating specifically that IARC reviewed more than 1,000 studies to come to its conclusion. The studies were conducted in humans, animals, in vitro, and with other experimental systems, and they included numerous well-conducted cohort and population-based case-control studies, and several long-term studies in rats and mice.

“Considering the reductions of specific cancers resulting from coffee drinking, the rich mix of cancer-preventative agents in brewed coffee, and the lack of evidence showing increases in cancers, OEHHA concluded that coffee does not pose a significant cancer risk under Proposition 65,” the law firm noted.■ C&CI

This extract is from an article that first appeared in the September’18 issue of C&CI, click on subscribe now if you wish to read the article in full and other informative articles in the September and future issues of C&CI.

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