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On 9 January 2019, the California Office of Environmental Health Hazard Assessment (OEHHA) took a further – and potentially final – step toward exempting coffee from Proposition 65 warnings.

As highlighted on a number of occasions by C&CI, in June 2018 OEHHA issued a notice that it intended to adopt a new regulation that would create an exemption for exposures to acrylamide and other Proposition 65-listed chemicals that are in present in coffee as a result of roasting.

Section 25249.6 of Proposition 65 requires businesses to provide clear and reasonable warnings before exposing consumers to any of nearly 1,000 chemicals that have been identified by California as causing cancer or reproductive toxicity. However, exposures that pose “no significant risk of cancer” are exempted from the warning requirement under section 25249.10 of the statute.

The regulation would establish as a matter of law that exposures to acrylamide and 14 other Proposition 65 chemicals, created when coffee beans are roasted, pose no significant risk of cancer, thereby exempting them from warnings: § 25704. Exposures to Listed Chemicals in Coffee Posing No Significant Risk. Exposure to listed chemicals in coffee created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.

James M Schurz and Robin Stafford, lawyers at Morrison Foerster reported that public comments on the proposal closed on 30 August 2018 and said OEHHA has now completed its review and response to  comments, including multiple submissions from the Council for Education and Research on Toxics (CERT), a Proposition 65 plaintiff.

“CERT is currently locked in a Proposition 65 enforcement battle with over 60 companies that roast, distribute, or sell coffee at retail, seeking civil penalties and Proposition 65 warnings about acrylamide in coffee,” they reported. “CERT also brought a separate action against OEHHA, challenging the legal and scientific validity of the proposed exemption. Both cases are currently pending in Los Angeles Superior Court.”

On 10 January 2019, OEHHA submitted the regulation — with no change to the proposed language — along with its 160-page final statement of reasons to the Office of Administrative Law (OAL) for review.

OAL has until 19 February 2018 to approve the regulation, reject it, or request further information from OEHHA.

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