In every cup of coffee, there is a chemical linked to cancer.
That undisputed fact led a Los Angeles judge to rule this spring that coffee companies must provide cancer warnings to coffee drinkers. The ruling cast a shadow on a daily and often essential rite for more than 100 million Americans.
But now, the state of California has intervened, telling coffee drinkers not to worry. An agency has proposed a rule declaring that not only does coffee pose no significant risk of cancer, it may actually have health benefits.
The measure will be the subject of a public hearing Thursday in Sacramento. If the proposal goes into effect, it is expected to nullify the court ruling about coffee warnings.
The reversal from suspected carcinogen to benign cup of joe is partly the result of more comprehensive scientific research. But it also reflects a rising concern that a blizzard of cancer warnings has desensitized consumers to serious health hazards.
The basis of the coffee lawsuit is a California law that requires companies to warn consumers if they are exposed to hazardous substances in products. The law, which has a nationwide impact because of the size of the state’s economy, already faces threats from federal legislators and legal challengers. Immunity for coffee could further destabilize it.
In 2010, a small nonprofit group from Long Beach decided to take on California’s coffee sellers, including Starbucks and Dunkin’ Donuts. In its case, the group noted that roasting coffee beans produces acrylamide, a chemical that has been linked to increased cancer risk when given to rodents in high concentrations. In 1991, the World Health Organization rated coffee as being “possibly carcinogenic.”
Coffee companies have said that attempts to strip acrylamide after beans were roasted were ineffective and warped the flavor. They also tried to convince Judge Elihu M. Berle in Los Angeles County Superior Court that trace amounts of the chemical in coffee were not dangerous to consumers.
In March, Berle ruled that coffee had to come with cancer warnings and the coffee companies geared up for years of appeals.
But in June, the World Health Organization concluded that there was “inadequate evidence” that drinking coffee caused cancer, reinforcing earlier findings by a panel of experts.
Faced with the outrage over Berle’s decision, and the new scientific research, California’s Office of Environmental Health Hazard Assessment made an unequivocal statement on coffee. The proposed regulation states that exposure to chemicals on the office’s list of carcinogens “that are produced as part of and inherent in the processes of roasting coffee beans and brewing coffee pose no significant risk of cancer.”
“There’s a danger to overwarning — it’s important to warn about real health risks,” said Sam Delson, the office’s deputy director for external and legislative affairs.
The lawyer for the Council for Education and Research on Toxics, the group suing the coffee-makers, described the proposal as “unprecedented and bad” when it was announced this summer.
“The whole thing stinks,” the lawyer, Raphael Metzger, told CBS News.
The state’s action comes amid an escalating backlash against what is often seen as ubiquitous consumer warnings.
In June, Rep. Kurt Schrader, D-Ore., was a co-sponsor of a bipartisan bill in Congress to ban inaccurate cautionary signage.
“When we have mandatory cancer warnings on a cup of coffee, something has gone seriously wrong with the process,” Schrader said while announcing the legislation.
When California’s cancer warning law passed in 1986, it was meant to inform Californians about tainted drinking water. The law, known as Proposition 65, now requires warnings for any product that exposes consumers to any one of more than 900 chemicals linked to birth defects and cancer.
This includes mercury in the tooth fillings at the dentist’s office and phthalates in vinyl couch cushions. Toilet paper, flip-flops, dumbbells and frozen oysters have been cited for noncompliance. There are Prop 65 warning signs at Disneyland.
Consumer activists praise the law as a public health service. It has helped push companies to remove or reduce chemicals like 4-Methylimidazole from soft drinks and formaldehyde from cosmetics.
Many more Prop 65 cases result in settlements than go to trial.
Much of the law’s “most powerful work is entirely invisible,” forcing major companies around the country to be more conscientious about how they formulate their products, said Claudia Polsky, a law professor at the University of California, Berkeley who worked for years on the Prop 65 enforcement team at the California attorney general’s office.
But in a state often accused by business groups of overregulating, many critics of Prop 65 say that the law is especially harsh. They said it incentivizes bounty hunter lawyers to recruit plaintiffs in pursuit of hefty settlement payouts.
The law has created “a cottage industry of lawyers roaming around looking for violators,” said Nathan A. Schachtman, a product liability defense lawyer and a Columbia Law School lecturer. J. Jeffrey Campbell, a former chief executive of Burger King — a repeat Prop 65 defendant — has called it a “legal mugging.”
The number of cases has ballooned. Last year, nearly 700 Prop 65 cases were settled and $25.8 million paid out — nearly four times the number of settlements from a decade earlier and more than double the dollar amount. The number of plaintiffs has increased fourfold, with one group, Ecological Alliance, involved in 72 settlements last year alone.
But recent court rulings suggest new resistance to cancer warnings.
Last month, a judge in California appellate court ruled that General Mills, Kellogg and Post Foods would not have to put warnings on 59 cereals cited in acrylamide complaints. Prop 65, the judge found, is pre-empted by federal policy that aims to increase Americans’ consumption of whole grains.
And in February, a federal judge issued a preliminary injunction that blocked efforts to force Monsanto to put cancer warning labels on its herbicide Roundup. Monsanto had argued that the labels amounted to a violation of its First Amendment rights by compelling the company to express a thought it disagreed with.
(In a case unrelated to Proposition 65, a California jury on Friday ordered Monsanto to pay $289 million in damages in a lawsuit from a school groundskeeper who said that Roundup and other Monsanto weedkillers caused his non-Hodgkin lymphoma.)
In coffee, however, the law’s detractors found a single rallying point, said David Roe, a former Environmental Defense Fund lawyer who helped write the law.
When faced with a Prop 65 complaint, most companies choose to quietly strip out the problematic ingredient rather than stick a warning on their product
“People trying to paint a bad picture of Prop 65 seized on coffee to create a poster child and say, ‘See, what a silly law,’” he said. “There was a lot of either stupidity or overreaching in taking that case to trial.”
For now, coffee companies are in a holding pattern. The state’s proposal is expected be approved by the end of November.
And Prop 65 litigation marches on. In recent months, lawyers have sent out Prop 65 violation notices to companies like Neiman Marcus, Walmart and CVS for selling products like bedsheets, kombucha and headphones.
In a particularly bold move, they also targeted chocolate.
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