Written By Amanda Cramer
California is relatively progressive when it comes to most issues. But has it gone too far? A judge in Los Angeles County Superior Court ruled that coffee must now carry a warning about a cancer-causing chemical simmering inside each cup. While such a decision may sound ominous, a look inside California’s mechanism for imposing such warnings proves that these cancer notices may be anything but.
All over California, people cannot seem to escape warning signs in bold, capital letters of the risk of cancer, birth defects, or other reproductive harms from various products. This all began when California voters passed legislation called Proposition 65, formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986. Under Proposition 65, the Office of Environmental Health Hazard Assessment compiles a list of chemicals, currently at nearly 900, that are known to cause cancer or birth defects. Businesses in California are then required to alert consumers if any of these chemicals are present on their premises. The law relies on citizen enforcement, and it allows anyone to sue. There is no injury requirement, and plaintiffs do not even need to have purchased the product that is the subject of the suit. Further, the law incentivizes private plaintiffs by allowing them, if successful, to share in any civil penalties awarded, in addition to entitling them to seek attorney’s fees.
Council for Education and Research on Toxics v. Starbucks Corp., et al.
In 2010, a not-for-profit group, the Council for Education and Research on Toxics, sued 90 coffee retailers, arguing that they were violating Proposition 65 by failing to warn consumers of a chemical in their coffee that could cause cancer. The chemical, acrylamide, forms naturally in some foods as they are cooked at high temperatures, and it has been found to cause cancer in mice in high doses. That danger has placed acrylamide on the Proposition 65 list of cancer causing chemicals.
The case was divided into phases, with the first phase of the trial covering “Defendants’ affirmative defenses of (1) ‘no significant risk level’; (2) First Amendment; and (3) federal preemption.” The court rejected the defendants’ arguments during this phase of the trial and, thus, the defendants moved on to phase two of the case, where a ruling was released on March 28, 2018.
In phase two, the defendants––who include Green Mountain Coffee Roasters Inc., the J.M. Smucker Company, Kraft Foods Global, and Starbucks, among others––argued that the levels of acrylamide in coffee should be considered safe and that the health benefits of coffee outweigh the risks of acrylamide. The defendants tried to prevail at trial by showing that, while their product may contain acrylamide, considerations of public health would support such an alternative risk level for exposure to the chemical, in addition to showing that this alternative level is supported by a quantitative risk assessment. They presented evidence from renowned experts, such as David Kessler, the former head of the U.S. Food and Drug Administration under both President Bush and President Clinton. Another expert, who performed a quantitative risk assessment of acrylamide, was also used. However, the court ultimately ruled that the “[d]efendants failed to satisfy their burden of proving by a preponderance of evidence that consumption of coffee confers a benefit to human health.”
The defendants are represented by lawyers from many of the nation’s largest law firms. The plaintiff is represented by a four-person firm. Ultimately, this was a David-and-Goliath battle, and David and his slingshot prevailed.
Burden of Proof
The defendants’ loss might seem surprising, however, much of it may have to do with the high burden of proof they faced in this case. When a plaintiff brings suit under Proposition 65, he or she only needs to show that a chemical in a product sold by a defendant is listed as harmful under the law. The burden is then shifted to the defendant to prove that the chemical is present at such a low level that the product does not require a warning. Here, the defendants had to prove that acrylamide in coffee would not cause one or more cases of cancer for every 100,000 people exposed, over a period of 70 years.
Statistically, meeting this empirical burden was a near practical impossibility for the defendants. The lifetime risk of cancer is one in two; thus, of the theoretical 100,000 coffee drinkers exposed to acrylamide, roughly 50,000 of them would eventually develop cancer for a host of other reasons in 70 years. Therefore, proving that one of those 100,000 people would develop cancer specifically because of acrylamide, rather than family history, genetics, or any other carcinogenic exposures would require a 70-year long study carefully controlling all the exposures to everything on earth in more than 100,000 people. But experimenting with 100,000 people would still not be enough. It would require more than 85 billion participants to build up the statistical power to support a strong claim that acrylamide does not cause cancer in one or more people out of every 100,000. This would become the largest, longest, and costliest study in the history of biomedical research, by orders of magnitude.
While this may all seem daunting, it is important for manufacturers, distributors, and retailers outside of California to be aware. Proposition 65 allows a suit to be initiated against any company with more than 10 employees doing business in California. After a successful suit, not only would a warning be necessary for the product, but companies could also be required to pay penalties of “up to $2,500 ‘per day for each violation.’” This means that even small, New York companies, who have no similar law in their states, but that occasionally sell products to stores in California, should be aware of the listed chemicals under Proposition 65 in order to make their business decisions accordingly.
Although many businesses have been ‘steaming’ over the ruling, they are not the only ones feeling the impact. When cancer notices are brewing everywhere, from indoor garages to the Disneyland Resort to any place that serves alcohol, this may quickly diminish the purpose of the law and make customers overlook such warnings.
Alexander Nazaryan, Will coffee in California come with a cancer warning?, Los Angeles Times (Feb. 18, 2018).
Brendan Borrell, Are Proposition 65 warnings healthful or hurtful?, Los Angeles Times (Nov. 2, 2009).
California coffee may soon come with a cancer warning, but should consumers worry?, CBS News (Feb. 8, 2018).
Council for Educ. and Research on Toxics v. Starbucks Corp., et al., No. BC435759, (Super. Ct. Cal. Mar. 28, 2018).
David Spiegelhalter, Coffee and cancer: what Starbucks might have argued, University of Cambridge: Winton Centre for Risk and Evidence Communication (Apr. 2, 2018).
Jenna Greene, Daily Dicta: Bitter Brew: What Went Wrong in California’s Coffee Lawsuit, The American Lawyer: Litigation Daily (Apr. 2, 2018).
Nate Raymond, Starbucks coffee in California must have cancer warning, judge says, Reuters (Mar. 29, 2018).
Norman C. Hile, et al., Beware Calif.’s Proposition 65, Law 360 (Jul. 19, 2011).
State of Cal. E.P.A. Office of Envtl. Health Hazard Assessment Safe Drinking Water And Toxic Enforcement Act Of 1986, Chemicals Known to the State to Cause Cancer or Reproductive Toxicity (Dec. 29, 2017).
Photo courtesy of CNN.