The History of Proposition 65, Law That May Require Coffee to Carry a Cancer Warning Label

The History of Proposition 65, Law That May Require Coffee to Carry a Cancer Warning Label

TThe coffee word has been stunned by recent news from the US state of California that a suit brought under the law known as Prop 65 has been decided in favor of the plaintiff, in effect rendering a judgement that coffee must be labeled in the state as containing substances known to cause cancer or reproductive harm.

By RIC RHINEHART

In the face of an ongoing stream of rigorous studies demonstrating the healthy aspects of coffee consumption, the recent decision by IARC to reclassify coffee as not carcinogenic, and the promising work suggesting that coffee has anti-carcinogenic properties, this news has been hard to understand.

When the news of the court ruling broke, Peter Giuliano wrote this brief post here on SCA News that included the SCA’s official comment on the matter. In this blog post, we’ll dig deeper into the history of this case and hope to provide a clearer picture of how it came to be. 

Prop 65 Panel at #CoffeeExpo2018
Are you at Specialty Coffee Expo this week? Join us on Friday, April 20, at 1:00pm in Room 617 of the Washington State Convention Center for a special session to examine the history of California’s Proposition 65, the significance of recent events, and the state of the science on the questions brought up by the legislation. Join scientific experts and coffee leaders in this important learning opportunity. This session will be recorded for the SCA Podcast.

The History of Proposition 65

It is helpful to understand a bit of background and context for the law in question. California and twenty other states allow for the direct passage of statutes through a process of ballot initiative. Through this process new laws can be created by gathering the required number of signatures to a petition, placing the proposed statute on the ballot in the general election. Passage by a majority of voters puts the statute on the books, without any legislative action. Similar processes, recall and referendum, allow for voters to directly remove a statute or an elected official. This process was designed to appeal to a populist sensibility around how laws are made and as a check on legislative power. There has been plenty of debate on the efficacy of this process, but one clear and unfortunate consequence is that new statutes are almost always delivered as a result of single issue agenda and often fail to consider the entirety of the impacts of the law.

Proposition 65 arrived on the ballot of California voters in 1986 at a time when environmental protections were large on the public stage. The “superfund” federal program had just arrived six years prior in a reaction to the challenges of addressing the impact of the disposal of industrial waste at a large and unregulated scale for decades prior. The language of Proposition 65 was drafted by the Environmental Defense Fund and was positioned as a mechanism to prevent businesses from exposing unwitting consumers to dangerous chemicals. The creation, passage, and implementation of the statute took place against a backdrop of real concern about environmental health and safety. The first Earth Day had been celebrated just 15 years earlier, and the EPA was created the same year.

Challenges of the Legislation

The language of the statute created by Proposition 65 has several significant features. One is the requirement that businesses themselves take on the majority of the responsibility for identifying when any of the chemicals listed as “known to cause cancer or reproductive harm” is present at a site. The statue also requires businesses to post warning signs wherever listed chemicals are present, resulting in the ubiquitous placement of Prop 65 warning signs across the entire landscape of the state. Most notable though is the mechanism for enforcement created by the statute, which allows for suits by private parties “acting in the public interest”. This was intended as an accelerant to enforcement when public official were slow to act as enforcers. The unintended consequence of this novel enforcement strategy has been the growth of a small industry of professional plaintiffs regularly bringing suits against perceived offenders.

Some of these suits have been turned aside by the courts in brusque fashion, but the vast majority of them are settled by the parties. Moreover, the statute provides for the plaintiffs to receive legal fees, and as a result most of the monies paid by businesses have gone to attorneys. According to the California Attorney General’s office, in 2015 (the most recent year for which data is available) businesses paid over $30 million to settle Prop 65 lawsuits, with over $21.5 million of that amount going toward payment of attorneys’ fees. By many estimates, more than 70% of all payments by Prop 65 defendants have gone to attorneys’ costs and fees over the life of the statute.

While the original statute was intended to combat the contamination of water and the environment by toxic industrial waste, the intervening years have seen a dramatic expansion of the application of the law. Coffee is in a long line of products that have been targeted by plaintiffs, including French fries, potato chips, and baked goods. This application is a far cry from the original intent of the law. As a result many businesses have taken to preemptively posting Prop 65 warning signs even when there is no indication of a potential health hazard. Places like Disneyland, parking garages, stadiums, and almost any hardware store all post signs as a matter of course.

2010: Coffee Becomes a Target

In the case in the news today, a suit was brought against roughly 200 named defendants in 2010 for failing to alert consumers of the presence of acrylamide in coffee as required by Prop 65. The NCA and SCA coordinated a meeting with attorneys in California with a strong Prop 65 defense practice, and a joint defense group was formed, with many of those named electing to participate.

The lawsuit has progressed in the intervening years, and last week notice of a preliminary notice of decision was issued. This notice is a first step in concluding the case, but many more steps remain, and this means that there are no immediate requirements for coffee businesses owners. A final decision will be published, and the defendants in the case will have the opportunity to appeal. A great deal of legal wrangling is likely to ensue.

What’s Next?

Of course, the burning question for coffee people is what can I do? Unfortunately, the answer is not an easy one. First of all, you can assure yourself and your customers that there is no need to give up drinking coffee, at least not according to the US Food and Drug Administration or a host of publicly quoted experts and agencies. If you are not engaged in selling coffee in California you will not be subject to any potential fines or labeling requirements, but as always the antics of California often spread to other jurisdictions, and a watchful eye on this is advised.

As an industry we are challenged to bring about any meaningful change directly. Reforms to the statute have been proposed over the years, but have failed to gain sufficient traction, and because the statute was brought into existence through the initiative process it can only be removed through referendum. In any event, despite the many abuses created by the language of the law, the desire to have a strong set of consumer protections against gross abuses is still very much present. As an industry group the SCA will continue to work closely with the National Coffee Association of the USA to support and align on any efforts to bring about meaningful change. For an excellent review of this topic and how to address ongoing concerns, see the NCA missive here.

We will be providing further updates as they become available, and invite you to watch SCA News for the latest analysis of the situation.

 

Prop 65 Panel at #CoffeeExpo2018
Are you at Specialty Coffee Expo this week? Join us on Friday, April 20, at 1:00pm in Room 617 of the Washington State Convention Center for a special session to examine the history of California’s Proposition 65, the significance of recent events, and the state of the science on the questions brought up by the legislation. Join scientific experts and coffee leaders in this important learning opportunity.
This session will be recorded for the SCA Podcast.