Representing more than 50 companies that roast, package, and distribute over 90% of coffee sold in the United States, including Starbucks Corporation, The J.M. Smucker Company, and other major players, Morrison & Foerster scored a promising win in a 10-year litigation. The complaint in the action alleges that the coffee producers and California retailers were required under California’s Proposition 65 to provide cancer warnings on coffee based on the chemical acrylamide, which is created when coffee beans are roasted.
Following 10 years of litigation and two adverse rulings in the case from the Los Angeles Superior Court, the California Office of Environmental Health Hazard Assessment (OEHHA), the agency that implements Prop 65, adopted a regulation exempting acrylamide and other roasting-created chemicals from Prop 65’s warning requirement. The regulation was adopted based on OEHHA’s scientific review of over 1,000 humans, animal, and experimental studies showing that drinking coffee does not increase the risk of any type of cancer and decreases the risk of certain cancers. Based on this record, OEHHA concluded that this mixture analysis was more scientifically appropriate than separately analyzing the risks of each chemical within the mixture.
Defendants have filed a motion for summary judgment, relying on the new regulation as a complete defense to all claims against them. Plaintiff Council for Education and Research on Toxics (CERT) filed eight separate motions challenging the scientific and legal validity of the regulation and contending that it could not be applied to CERT’s existing claims.
On July 15, 2020, Los Angeles County Superior Court Judge Elihu M. Berle denied three of CERT’s motions, ruling that CERT had failed to meet its initial burden as the moving party and that facts in the administrative record, disputed by CERT, precluded summary adjudication. Defendants believe that this development is promising because these flaws are shared by CERT’s other motions. However, they will have to wait a bit longer to see if the Court agrees, since Judge Berle continued the hearing on the rest of the motions until August 10, 2020.
The MoFo team representing the coffee companies is led by Litigation partner James M. Schurz. The case is Council for Education and Research on Toxics v. Starbucks Corp. et al. in the Superior Court of the State of California, County of Los Angeles.