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September’18 Editorial comment: Prop 65 in the line of fire after OEHHA proposal

September’18 Editorial comment: Prop 65 in the line of fire after OEHHA proposal

This Editorial comment  first appeared in the September ’18 issue of C&CI. Click on subscribe now if you wish to read more informative articles in the September and future issues of C&CI.

After what has been a worrying few months for the coffee industry in the US and elsewhere it looks like common sense will probably prevail in the industry’s legal fight with Proposition 65 and acrylamide.

As highlighted elsewhere in this issue in more detail, the state of California is expected to carve out an exemption for coffee in legislation that would otherwise have required companies to label it as carcinogenic.

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 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 chemicals listed in Proposition 65 that are produced as part of, and inherent to, the processes of roasting and brewing coffee ‘pose no significant risk of cancer.’

OEHHA’s action in June followed a ruling earlier this year by a judge in Los Angeles that Starbucks and 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’ and that coffee packaging would have to bear health warnings as result.

After the hearing, a spokesperson from OEHHA was quoted in an article in the Los Angeles Times as saying that the rule could be adopted as early as November. Bill Murray, President of the National Coffee Association, told C&CI he was “cautiously optimistic” that the rule, which reflects the overwhelming weight of scientific evidence on coffee and health, will be adopted.

As many in and outside the coffee industry have pointed out, the judge’s decision earlier this year 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.

As highlighted in our article in this issue, questions have also been raised about Proposition 65 and how it is being used in other sectors. August 2018 also saw the California Court of Appeal rule that breakfast cereal manufacturers should not be required to label products with Proposition 65 warnings because of the presence of acrylamide because federal law pre-empts Proposition 65.

Lawyers pointed out that a Proposition 65 warning on cereals would present an obstacle to the Food and Drug Administration’s stated objective of encouraging the consumption of wholegrains of the type found in cereals. The lawyers said the FDA’s ruling should be read for what it is – a scathing indictment of Proposition 65.

Essentially, they said, the ruling said that Proposition 65 labelling is so ubiquitous as to be ‘meaningless,’ the science behind it is ‘suspect,’ and the labelling requirements are actually counterproductive because, to the extent consumers read the warnings, the labels might actually deter them from eating healthy foods. The same could be said to apply to consuming coffee, which study after study has shown to have healthful properties.

As the International Agency for Research on Cancer (IARC) stated recently, after a review of more than 1,000 studies, coffee is associated with a reduced risk of liver and uterine cancer. It also has a number of other non-cancer related health benefits.

Acrylamide may cause cancer if you force feed it to lab rats, but all the evidence points to the fact that coffee does not. The new ruling from OEHHA clearly recognises that the Proposition 65 warning proposed for coffee cannot be reconciled with the science.

As another law firm recently noted, research on coffee has ‘highlighted a gap in Proposition 65 science.’ The presence of a chemical known to cause cancer in isolation does not necessarily equate to a risk of cancer from exposure to a complex substance that contains a small quantity of it.

Unlike coffee, the health benefits of which have, fortunately, been studied in great detail by  scientists in the last decade, the manufacturers of many other products simply do not have data to rebut Proposition 65. Producing data to get cancer labelling warnings overturned (where appropriate) would cost a great deal of time and money. As a result, many cancer warnings are almost certainly in place that are not supported by science and would not be supported were research undertaken.

Consumers need protection, but Proposition 65 isn’t the right way to provide it.

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