The Coffee Cancer Conundrum

Radio Law Talk Segment

The Coffee Cancer Conundrum

 

*We do not get political. We just give the facts and the law.

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INTRO:

A nonprofit group wants coffee manufacturers, distributors and retailers to post ominous warnings about a cancer-causing chemical stewing in every brew and has been presenting evidence in a Los Angeles courtroom to make its case.

 

FACTS (brief, 6 sentences):

Acrylamide is a carcinogen found in cooked foods such as French fries, and that is also a natural byproduct of the coffee roasting process. The coffee industry has acknowledged the presence of the chemical but asserts it is at harmless levels and is outweighed by benefits from drinking coffee. Under the Safe Drinking Water and Toxic Enforcement Act, passed by voters as Proposition 65 in 1986, private citizens, advocacy groups and attorneys can sue on behalf of the state and collect a portion of civil penalties. Allan Hirsch, chief deputy of the office said that the “intention is to help people make more informed decisions. If you continue to buy a product that will expose you to a chemical, that’s OK as long as you’re informed.” Defense lawyers declined to comment on the case but asserted in court that they should prevail under an exemption for chemicals that result naturally from cooking necessary for palatability or to avoid microbiological contamination. Civil penalties could come to $2,500 per person exposed each day. With penalties reaching back eight years that could ring up an astronomical bill in a state with close to 40 million residents, though such a massive figure is very unlikely.

 

ISSUES (Summarize both sides argument, both perspectives. You can use bullet points):

  • Does Proposition 65 require that ready-to-drink coffee containing acrylamide carry a cancer warning?
    • Yes:
      • Proposition 65 requires:
      • businesses to notify Californians about significant amounts of chemicals in the products they purchase, in their homes or workplaces, or that are released into the environment.
      • Companies provide a ‘clear and reasonable” warning before knowingly and intentionally exposing anyone to a listed chemical
        • For chemicals causing cancer, the “no significant risk level” requires that a person exposed to the chemical at the “no significant risk level” for 70 years would not have more than a “one in 100,000” chance of developing cancer as a result of that exposure.
      • The Court has already ruled that Epidemiology studies present by the defense were inadequate to evaluate the risk posed
      • California has determined that acrylamide is a chemical that causes cancer
      • It is insufficient legally and scientifically to claim that because there may be some health benefits, there is a higher alternative risk level that should apply
      • 12 ounce serving of coffee contains acrylamide at 4-100 times the “no significant risk level” set by OEHHA
      • Californian’s have a right to know what they are drinking and the effects that it may have on their body.
    • NO:
      • The benefits of drinking coffee outweigh any potential harm
        • Stanley Omaye (a professor of nutrition and toxicology at the University of Nevada) said “based on the animal studies, you would have to probably drink over 100 cups of coffee a day in order to get that dangerous dose, so it is totally absurd.”
      • Acrylamide is present in many cooked foods, such as French fries, potato chips, bread, cereal. Requiring coffee to have the warning would basically mean that everything cooked over 248 degrees would need the warning, even if levels are very minimal
        • Pursuant to Section 12703 of the Health and Safety Code- OEHHA determined breads and cereals are important sources of dietary fiber and such food are necessary to support public health, so there should be an alternative risk level for acrylamide in these food items.
      • There should be an exemption for chemicals that result naturally from cooking necessary for palpability or to avoid microbiological contamination
        • No products would satisfy the exception if coffee doesn’t
      • Alternative risk level in Proposition 65 says there are appropriate circumstances under which the people of the State of CA could be exposed to greater levels. There is no expressed way to measure that level, and that was intentional.
      • There is no commercially viable way to reduce the acrylamide in coffee (as per a University of California Davis Professor William Ristenpart of the department of Chemical Engineering)
      • It is not a food additive, it is a byproduct of preparing food and coffee

 

LAW (with references, no need for blue book citations. This is the most important part, make sure the attorneys can answer any questions from callers on the topic. You can use bullet points):

  • The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65)
    • The “right to know” law that requires the State of California to maintain a list of chemicals that cause cancer or reproductive toxicity
    • Businesses that knowingly expose patrons to such chemicals above certain levels are required by law to display warnings
    • California Health and Safety Code Section 25249.6
      • Required Warning Before Exposure To Chemicals Known to Cause Cancer Or Reproductive Toxicity.   No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.
    • Penalties
      • California Health and Safety Code Section 25249.7 (b)(1) and (b)(2)
        • A person who has violated Section 25249.5 or 25249.6 is liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) per day for each violation in addition to any other penalty established by law. That civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction
        • (2) In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:
          • (A) The nature and extent of the violation.
          • (B) The number of, and severity of, the violations.
          • (C) The economic effect of the penalty on the violator.
          • (D) Whether the violator took good faith measures to comply with this chapter and the time these measures were taken.
          • (E) The willfulness of the violator’s misconduct.
          • (F) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
          • (G) Any other factor that justice may require.

 

  • Exemptions from Warning Requirement: Health and Safety Code 25249.10
    • Section 25249.6 shall not apply to any of the following:
    • Health and Safety Code 12703(b)
      • (a)  An exposure for which federal law governs warning in a manner that preempts state authority.
      • (b)  An exposure that takes place less than twelve months subsequent to the listing of the chemical in question on the list required to be published under subdivision (a) of Section 25249.8.
      • (c)  An exposure for which the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical pursuant to subdivision (a) of Section 25249.8. In any action brought to enforce Section 25249.6, the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant.

 

 

DETAILED FACTS (tell the story):

Starting in 2010, the Council for Education and Research on Toxics (CERT) filed a complaint for civil penalties and injunctive relief for violators of Proposition 65 in the Superior Court of LA. The complaint was brought against 90 companies, including grocery stores and retailers, specifically in California. The complaint alleges that the Defendants failed to provide clear and reasonable warnings that ingestion of the products (defined as all ready-to-drink coffee containing acrylamide, sold in restaurants, coffee houses, and retail specialty stores) would result in exposure to acrylamide, a chemical known to the State of California to cause cancer. The complaint alleged that under the Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code section 25249.v, businesses must provide persons with a “clear and reasonable warning” before exposing individuals to these chemicals, and that the Defendants failed to do so. The injunctive relief sought that the Defendants should provide warnings stating that “Chemicals known to the State of California to cause cancer and reproductive toxicity, including acrylamide, are present in coffee, baked goods, and other food or beverages sold here.” The warning would have to be at least 10 inched by 10 inches and placed in a location where food and beverages are purchased. In 2014 the first phase of the two-phase trial took place, with the court trying several affirmative defenses, including that the acrylamide posed no significant risk. Judge Berle ruled in favor of the plaintiff. During the second phase of the trial, the defendants argued that it was an acceptable “alternative risk level” for acrylamide. A hearing in 2015 the plaintiff’s attorney argued that the affirmative defenses had presented speculative evidence that didn’t actually calculate the risk of acrylamide in coffee. CERT complained that a 12-ounce serving of the coffee contained at four to well over 100 times the “no significant risk” level set by California’s Office of Environmental Health Hazard Assessment. September 2017 a bench trial kicked off for the 7 year old suit. CERT lawyer has argued that the benefits of coffee are “just a bunch of hypotheses” and that California’s have been exposed to “really high levels of a carcinogen” by drinking coffee. The goal of CERT is to motivate the industry to remove the chemical from coffee. Based on the Office of Environmental Health Hazard Assessment newly adopted regulations in 2016 require more specific warnings for consumers exposed to chemicals. Many of the coffee defendants have already posted warnings, and if the judge rules against the coffee companies, mega chains and mom and pop operations will all follow suit. The Defense is now relying on prevailing under an exception for chemicals that result naturally from cooking necessary for palatability or to avoid microbiological contamination. Civil penalties could come to $2,500 per person exposed each day. With penalties reaching back 8 years that could ring up an astronomical bill. Two defendants have settled in the past month and agreed to post warnings.

 

 

OTHER FACTS (interesting facts, related facts, trivia, etc.):

 

ARTICLE LINKS (so we can print them out):

https://www.law360.com/articles/960583/coffee-cancer-trial-against-starbucks-others-begins-to-brew

http://www.shape.com/latest-news-trends/coffee-warning-what-you-need-know-about-acrylamide

http://www.bradleygrombacher.com/2017/09/13/will-coffee-soon-come-proposition-65-cancer-warning/

 

 

MEDIA (less than a 2 minutes FUNNY sound bite. You can include a couple of options. We realize that for some topics there is not much):

https://youtu.be/yNy_bT4rwdM

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