Issue link: https://read.dmtmag.com/i/491374
14 STiR tea & coffee industry international The coffee trade is paying close attention to Cali- fornia where a lawsuit and new guidelines may re- quire Prop 65 warning labels on coffee that name acrylamide, a hazardous byproduct of roasting. The state law now known as "Prop 65" was once titled "The Safe Drinking Water and Toxic Enforcement Act of 1986," and was voted in by the citizens of California. The original intent was to ensure drinking water safety. Today the law is more broadly applied, requir- ing companies to warn consumers if their products contain toxins known to cause cancer and birth defects in humans. Positive effects of the law include the refor- mulation of many products and manufacturing processes. However, Prop 65 has brought with it controversy as well. Any citizen may bring a law- suit based on a list of chemicals that changes ev- ery year. That this list and the warnings associated with it are subject to change was intended by those who crafted the regulation. This allows consumer protection concerns to stay current with new tech- nologies as advances continue. That flexibility, however, spells trouble for many California businesses. Window and door manufacturers, cosmetic firms, and coffee roasters all must now post warnings to consumers. Until recently, that warning was fairly generic stating only that "…products contain chemicals known to the State of California to cause cancer, birth de- fects or other reproductive harm." New guidelines proposed for Prop 65 warnings include Section 25602 which would require "the dirty dozen" to be named specifically. Acrylamide is on that list. Legal defense expensive Any company which markets a product that con- tains any one of the many chemicals now being tracked by California's Office of Environmental Health Hazard Assessment (OEHHA) could be the target of a suit. A recent wave of these suits resulted in numerous settlements. According to a 2013 report prepared by the California Attorney General's office, more than $17 million was paid on Prop 65 out-of-court settlements. Those sums, often paid in "payments in-lieu- of penalties (PILPs)," have come under increasing scrutiny. The attorney general's office is watch- ing out of concern that the portion of the PILPs owed to the state are not being disbursed as the law requires. Another common complaint is that legal fees in many of these agreements are equal or greater than the penalty incurred. This is why many business leaders view Prop 65 plaintiff attorneys as profiteers who are taking advantage of the law's flexibility. Dan Belliveau, co-founder and c.e.o. of Noh- bell Corporation, stated, "Simply getting a case like this to the first hearing can cost hundreds of thou- sands of dollars." None of the companies contacted for this story will go on record about Prop 65. Those who have not yet been named in a suit fear being noticed. Many have already joined coalitions established to defray legal fees or to settle and avoid the negative publicity that comes along with being sued under a consumer protections law. A landmark trial Cases argued in court, such as the Prop 65 case brought by the Council for Education and Re- search on Toxics (CERT) against more than 70 companies selling ready-to-drink coffee, rely on testimony from scientific experts. Plaintiff and defense experts gave testimony on such questions as "Do animal studies showing a higher risk from ingesting food with elevated levels of acrylamide mean that drinking coffee carries the same risk?" A coffee scientist will tell you it probably does not. However, to prove a "not" is challenging even under the most controlled experiments. To do that in a court of law for an industry in which process- ing methods, roasting profiles, and brewing tech- niques can all affect what ends up in the cup makes winning such an argument unlikely at best.There is no accepted legal standard for what amount of the chemical can be considered safe. This leaves the likes of Starbucks, Keurig Green Mountain, and Maxwell House among others in the undesirable position of trying to prove a negative. Prop 65 Update: Acrylamide in Coffee By Jenny Neill NEWS