California Proceeds to Finalize Its Proposition 65 Exemption for Coffee

James M. Schurzjschurz@mofo.com ] and Robin Staffordrstafford@mofo.com ]

On January 9, 2019, the California Office of Environmental Health Hazard Assessment (OEHHA) took a further – and potentially final – step toward exempting coffee from Proposition 65 warnings.
As we reported in an earlier alert, on June 15, 2018, OEHHA issued a notice that it intended to adopt a new regulation that would create a specific exemption for exposures to acrylamide and other Proposition 65-listed chemicals that are in present in coffee as a result of roasting coffee beans.
Section 25249.6 of Proposition 65 requires businesses to provide clear and reasonable warnings before exposing consumers to any of nearly 1,000 chemicals that have been identified by California as causing cancer or reproductive toxicity. However, exposures that pose “no significant risk of cancer” are exempted from the warning requirement under section 25249.10 of the statute.
The regulation would establish as a matter of law that exposures to acrylamide and 14 other Proposition 65 chemicals, created when coffee beans are roasted, pose no significant risk of cancer, thereby exempting them from warnings:
§ 25704. Exposures to Listed Chemicals in Coffee Posing No Significant Risk

Exposures to listed chemicals in coffee created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.

Public comments on the proposal closed on August 30, 2018. OEHHA has now completed its review and response to  comments, including multiple submissions from the Council for Education and Research on Toxics (CERT), a Proposition  65 plaintiff.

CERT is currently locked in a Proposition 65 enforcement battle with over 60 companies that roast, distribute, or sell coffee at retail, seeking civil penalties and Proposition 65 warnings about acrylamide in coffee. CERT also brought a separate action against OEHHA, challenging the legal and scientific validity of the proposed exemption. Both cases are currently pending in Los Angeles Superior Court.
OEHHA has now completed its review and response to public comments. On January 10, 2019, OEHHA submitted the regulation — with no change to the proposed language — along with its 160-page final statement of reasons to the Office of Administrative Law (OAL) for review.
OAL has until February 19, 2018 to approve the regulation, reject it, or request further information from OEHHA.