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.
