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The coffee industry’s tussle with Prop 65 is not over yet, and could run on for some time, despite the Food & Drug Administration and Congressional leaders lending their weight to concerns about the legislation and the way it is being used

Coffee industry leaders have urged caution after the judge at the centre of the Proposition 65 court case affecting coffee companies in California launched an appeal.

The judge appealed after the Office of Environmental Health Hazard Assessment (OEHHA) – the lead state agency that implements controversial Proposition 65 legislation – proposed adding a new section to Title 27 of the California Code of Regulations stating that exposure to Proposition 65 listed chemicals in coffee ‘pose no significant risk of cancer.’ The judge had earlier ruled that coffee sold in California must carry health warnings because of the presence of acrylamide, despite no link having been proved between coffee and cancer.

FDA wades into controversy

OEHHA’s statement was supported by the Commissioner of the Food & Drug Administration (FDA), Dr Scott Gottlieb, who said the FDA was “deeply concerned” when the court ruled that coffee sold in California needed to be labelled with a cancer warning because of the presence of the chemical.
“Under Proposition 65, California requires that certain products contain cancer warnings if they will expose consumers to chemicals that California health authorities have identified as causing cancer. But requiring a cancer warning on coffee, based on the presence of acrylamide, would be more likely to mislead consumers than to inform them,” said Gottlieb, noting that although coffee contains acrylamide science indicates that consuming coffee poses no significant risk of cancer, a finding reflected in a comprehensive report by the World Health Organization’s International Agency for Research on Cancer.
Speaking to C&CI in September, Bill Murray, President and CEO of the National Coffee Association, said two separate strands of activity are colliding in the ongoing case.

Cancer warnings

“First, there is the long-standing legal action brought by lawyer Rafael Metzger on behalf of ‘his client CERT’ through which he is suing coffee companies and demanding that they put Prop 65 ‘cancer warnings’ on their products/shops, and pay large fines, of which he would be awarded a portion.
“Second, the regulatory agency itself, OEHHA, proposed in their June rulemaking notice to exempt coffee from certain provisions of Prop 65. These have collided in that the lawyer representing CERT has filed a request for an injunction which, if granted, would stop OEHHA from proceeding with their rulemaking process.
“Open issues at this moment are whether the injunction will be granted. A question that precedes adjudication of the injunction is the question of which judge will hear the request, and that too is an open issue – specifically, whether the judge handling the larger legal case would be the same one to hear the injunction request.”■ C&CI

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

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