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Dose of truth: California, coffee and cancer

From the July 2018 issue.

With California courts ruling in favour of cancer warnings on coffee, the global industry fears its greater implications.

Although the state of California represents only a small fraction of the global coffee industry’s activity, its strict regulatory environment may end up influencing the greater industry based on a recent ruling at the state court level. On 7 May, California Superior Court Judge Elihu Berle ruled that coffee is subject to Proposition 65, which is a state law that enforces warnings of exposure to various chemicals known to cause cancer.

In the case “Council for Education & Research on Toxics v. Starbucks Corp.”, which began in early 2010, the Council for Education and Research on Toxics (CERT) alleges that coffee merchants, supermarkets that sell packaged coffee, and coffee producers themselves failed to warn millions of California consumers that coffee contains acrylamide, one of nearly 900 chemicals listed under Prop 65.

While plaintiffs in Prop 65 cases don’t have to prove any bodily injury or even purchase the violating product to file a lawsuit, defendants carry the burden of proving there is no significant risk from exposure to the offending chemical. In this case, CERT only had to allege that coffee contains trace amounts of acrylamide.

The defendants, who grew to include 90 coffee companies at one point, including Starbucks, Peet’s Coffee and 7-Eleven, didn’t contest acrylamide’s existence in roasted coffee. Their argument was it exists at a harmless level, or below Prop 65’s “no significant risk level” (NSRL). Additionally, because acrylamide forms naturally in the coffee roasting process, the defendants argued that coffee should be exempt.

CERT initially filed lawsuits separately against all the coffee categories, but the courts merged the cases and, instead, segmented it into stages for efficiency. Phase One addressed the defendants’ argument of harmless acrylamide levels and was decided in 2015, with the court deciding in favour of CERT.

The decision rendered in May was for Phase Two, which addressed the defendant’s claim that coffee should be exempt from the NSRL and subject to an “alternative significant risk level” (ASRL).

Under Prop 65 regulations, if an offending chemical is formed as a result of cooking to render it safe or palatable, then the amount does not require a warning. Because green coffee beans must be roasted for consumption, the defendants argued it should fall under the exemption. They also proposed that the proven health benefits of coffee outweigh the risks of minimal acrylamide exposure.

But once again, in a decision that shocked the global industry, the judge decided in favour of CERT, stating that the coffee industry failed to persuade him on the ASRL and “failed to satisfy their burden of proving by a preponderance of evidence that consumption of coffee confers a benefit to human health”.

History of Prop 65
Prop 65, which originated as the “Safe Drinking Water and Toxic Enforcement Act” in 1986, prohibits businesses from releasing certain substances into the environment, and from exposing individuals to certain substances without providing a warning.

According to the California Office of Environmental Health Hazard Assessment (OEHHA), the government entity that administers the law, Prop 65 requires the state to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. It then requires businesses to provide a “clear and reasonable” warning to Californians before knowingly exposing them to significant amounts of those chemicals in products. Those warnings can take various forms, including signs at a business establishment, labels on a consumer product or notices published in a newspaper.

The initiative, which was passed by California voters, aimed to address growing concern about exposure to toxic chemicals by both alerting consumers to exposure so they could make informed decisions and encouraging companies to use fewer of them. Despite the law’s good intentions, Prop 65 has created a cottage industry of plaintiffs because OEHHA has empowered “any individual acting in the public interest” to enforce it. Attorneys are generally the ones seeking out and filing Prop 65 claims, though, and they often do it under the guise of an individual or a nonprofit organisation. These attorneys have come to be known as “bounty hunters”. 

In 2017, 688 Prop 65 suits were settled for a total of US$25.8 million, according to the California Attorney General’s Office. Of that, 76 per cent went to lawyer’s fees and costs.

“This isn’t a situation where the state might have 100 detectors going around looking for violations,” says California environmental and regulatory law attorney James Dufour. “We have deputised every person in the state of California to enforce this law. So that means enforcement can be saturated – even to the extent it can be considered a business.”

The jury is still out on whether Prop 65 has truly done any good, with most sceptics pointing to the inundation of warning signs that have come out of these active bounty hunters.

“Prop 65 warning signs have become ubiquitous in California at retail establishments, offices, on merchandise labels, and even nationally via online retailers, which may be desensitising consumers to their actual messages,” says William Murray, President and CEO of the National Coffee Association (NCA).

Adds long-time Prop 65 attorney Malcolm Weiss, “In the beginning, there was a real benefit to putting the warnings on certain products, but I’ve been through enough of these [types of cases] that the value of the warnings has greatly diminished.”

In addition to being oversaturated, experts say the lack of context or specifics in the warnings also deflate their value. Although the OEHHA says the law “has increased public awareness about the adverse effects of exposure to listed chemicals” and has, as such, helped consumers make more informed decisions about their health, the warnings don’t actually name the chemical present, its levels, or risks – the context and specifics consumers likely need to make truly informed decisions. Revised regulation attempting to address this concern will go into effect in August, requiring warnings to direct consumers to an government website for more details.

What is acrylamide?
Although acrylamide has been on the Prop 65 list since 1990 as a known carcinogen, Swedish scientists first discovered it in foods in 2002. It forms when certain sugars and amino acids that occur naturally, largely in starchy foods, are exposed to very high temperatures.

In lab tests conducted by the American Cancer Society (ACS), acrylamide increased the risk of several types of cancer when given to rodents. The doses given in those studies were significantly higher than the levels people might be exposed to in foods, though, and it’s also not clear if these results would apply to people.

“Since acrylamide was first found in certain foods, dozens of studies have looked at whether people who eat more of these foods might be at higher risk for certain cancers,” states ACS. “Most of the studies done so far have not found an increased risk of cancer in humans.”

Murray also takes issue with the fact that Prop 65 only focuses on the individual chemical, rather than the food as a whole. “Prop 65 is about providing warnings to the public about potential carcinogens, so what matters under the regulation is that coffee contains a small amount of natural acrylamide,” he tells Global Coffee Report. “But it doesn’t matter that the World Health Organization (WHO) found that coffee is not actually linked to cancer risk.”

When the WHO’s International Agency for Research on Cancer (IARC) first evaluated coffee in 1991, it was classified as possibly carcinogenic to humans based on limited evidence from epidemiological studies. But in 2016, the IARC reassessed its classification of coffee with a much larger and stronger body of evidence from nearly 500 studies on more than 20 different cancers. Ultimately it concluded that coffee could not be classified as a “possible carcinogen”.

Does coffee cause cancer?
In addition to the WHO’s latest findings, studies over recent years have shown that coffee may help prevent some cancers. Studies by the ACS have linked coffee drinking to a lowered risk of prostate, liver, and endometrial cancers, and some cancers of the mouth and throat. This is in addition to reduced risk of other diseases.

If the vagueness and inundation of Prop 65 warnings wasn’t confusing enough, California coffee drinkers have science telling them that coffee is good for them while the law tells them that it contains a “chemical known to cause cancer”.

“In our opinion, the application of Prop 65 to coffee is a mistake that will undermine consumer confidence in all Prop 65 warnings,” says NCA’s Murray. “This lawsuit has made a mockery of Prop 65, has confused consumers and does nothing to improve public health.”

While consumers may be confused, the experts aren’t sure if the warnings will affect consumption levels, which have been increasing about 2 per cent per year on average globally since 2013, according to the International Coffee Organization.

Dufour has worked on Prop 65 cases in a variety of industries, including construction, dentistry, and candy. He says the effect on consumption has been varied.

“Bags of cement all have warnings and people are still buying them like they’re going out of style,” he says. “Conversely, you can’t sell candy with a cancer warning label on it, which is why that industry resisted has resisted warnings and, instead, opted to reformulate its products.”

In lieu of warnings, defendants can either stop selling the violating product or modify the recipe in a way that reduces the offending chemical to below the NSRL. For companies like Starbucks or Peet’s, dropping coffee from their product portfolios isn’t an option. Because coffee must be roasted for consumption, roasters can’t simply reformulate the “recipe”.

To label or not to label
So now that Judge Berle has made his decision, California coffee companies – and even national and international roasters outside of California – will have to decide whether they will comply with the regulation and post Prop 65 warnings.

“There isn’t a one-size-fits-all solution,” says Prop 65 attorney Weiss. “Some clients say they’re not going to put up warnings no matter what, and others say they’ll put up a warning and keep selling the product.”

As early as 2012, some companies preemptively posted Prop 65 signs in their establishments to hedge against civil penalties as high as US$2,500 per cup. At least 13 have posted warnings as part of settlements. The most recent was 7-Eleven last September, which agreed to post warnings and pay US$900,000 in civil penalties and attorneys’ fees.

Phase Three of the trial will focus on the specifics of what comprises a “clear and reasonable” warning in this case and the civil penalties for violation. The law doesn’t define what is clear and reasonable and so a variety of warnings can suffice.

Phase Three will evaluate if the warnings from those aforementioned proactive companies are sufficient.

If the courts decide that Prop 65 warnings must be printed on the actual coffee packaging, rather than posted in the establishments where it’s sold, then roasters are in for a logistical nightmare.

“Prop 65 only applies to sales inside of California, however, there are implications for consumers outside of California as well,” Murray says. “Coffee companies based in other states or countries will have to change their packaging if they want to sell it in California. Changing packaging is an expensive process and distribution of consumer goods is complex, though, so Prop 65 warning labels are likely to end up on packages of coffee sold outside of California, especially in the adjacent states.”

Weiss agrees. “In the majority of instances, companies are unable to differentiate what products are going to California and what products are going elsewhere. Once those products enter the distribution centre, they may end up anywhere. That’s all compounded by e-commerce. So this is effectively California rightly or wrongly affecting commerce throughout the US.”

The experts predict that if warnings end up being required on packaging, roasters will have to label all of their coffee products.

“This market is so big that we just put Prop 65 warnings on everything because you can’t control where it goes,” attorney Dufour says. “From a practical logistics standpoint you almost can’t discriminate unless you have complex logistics and labelling systems.”
If that’s the direction it goes, the entire industry will likely have to step up its education efforts in order to help coffee consumers make informed purchasing decisions in an environment inundated with vague warnings and where there is a clear disconnect between science and law.

“We have an obligation – all of us – to dispel the confusion created by Prop 65,” emphasises Murray. “It is important that we continue to provide accurate, unbiased information to consumers, based upon credible, independent research, to let them make informed decisions about their lifestyle. While this is first a consumer issue, coffee is a big part of our economy, from baristas to business owners – all of which depend on consumer education.”

He adds, “Our goal is to help coffee drinkers make well-informed decisions [so] we are confident that by making the facts known, coffee drinkers will continue to enjoy America’s favourite beverage in good health, without worry.” GCR

Since the publishing of this story, The Office of Environmental Health Hazard Assessment has proposed a regulation to clear coffee of its toxic stigma. Read about it here

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