Acrylamide is on the Proposition 65 list of chemicals which California has declared are known to the state to cause cancer or reproductive toxicity. While acrylamide is not found in raw foods, the chemical can form in starchy and carbohydrate rich foods, such as potatoes, when cooked at high temperatures. Acrylamide is a natural byproduct of the coffee roasting process, and is formed when the sugars and amino acids of the coffee bean are heated.
CERT (associated with Raphael Metzger of the Metzger Law Group) is a well-known plaintiff in Prop 65 cases of this sort, and this is not the first time CERT has been involved in litigation over acrylamide in food and drink products. Acrylamide was added to the Proposition 65 list in 1990 based on studies showing it as a potential carcinogen in industrial exposures. In April 2002, a subsequent study by the Swedish National Food Administration revealed high levels of the chemical in various high carbohydrate foods which are cooked at high temperatures, including french fries, potato chips, crackers, and bread. CERT filed suit that same year against McDonalds and Burger King over the presence of acrylamide in french fries. The fast-food retailers eventually settled and agreed to post Prop 65 warnings.
Office of Environmental Health Hazard Assessment (OEHHA) has set the No Significant Risk Level (NSRL) for acrylamide at 0.2 µg/day. NSRL is the level of exposure at which chemicals on the Prop 65 list are deemed to pose no significant risk, and for which a Prop 65 warning is not required. CERT v. Starbuck Corp., et al was originally filed in 2010 against 90 coffee sellers. The suit claimed that defendants’ coffee contained 4-100x more acrylamide than the NSRL. During the first phase of a two-phase bench trial, defendants argued that the level of acrylamide in their coffee products posed no significant risk because a multitude of studies show that coffee consumption does not increase the risk of cancer. The court rejected this argument because the studies assessed the effects of coffee generally, as opposed to the presence of acrylamide in the coffee. Defendants’ argument that requiring them to post a Prop 65 warning amounts to unconstitutional forced speech was also rejected.
The second phase of the trial began in September 2017. During this bench trial, defendants argued that coffee is exempt from the NSRL standard, and rather an “alternative risk level” applies. Proposition 65 allows for a higher “alternative risk level” to apply to chemicals produced in the process of cooking foods to make them palatable or safe. Since acrylamide in coffee is naturally produced during the roasting process, Defendants argue that they are subject to this exemption.
A ruling is expected soon, and if CERT succeeds, California coffee sellers will be required to post Proposition 65 warnings. Several coffee retailers who were initially named in the lawsuit have already posted warnings in their stores. 7-Eleven, who opted to settle the suit, agreed to post warnings and pay a $900,000 fee. While Starbucks continues to challenge the suit, it has already posted warnings at its stores, presumably to limit damages it may have to pay if CERT succeeds at trial.
Conkle, Kremer & Engel attorneys will continue to monitor and report on the outcome of this case. CK&E has many years of experience advising clients about Proposition 65 and other regulatory compliance issues they face. Our attorneys help clients stay out of legal hot water by working with them to ensure their products continue to meet all legal requirements, and helping them plan for foreseeable changes in the law.