James M. Schurz and Robin Stafford
Consumer Products, Consumer Litigation, and Proposition 65 + Chemicals
On June 3, 2019, the California Office of Administrative Law (OAL) announced that it had approved a regulation proposed by the Office of Environmental Health Hazard Assessment (OEHHA) that would exempt businesses from having to provide Proposition 65 warnings for exposures to acrylamide and other listed chemicals that are created when coffee is roasted or brewed.
OEHHA proposed the regulation a year ago, on June 15, 2018. It was first submitted to OAL for approval in January 2019, after OEHHA reviewed and drafted responses to public comments.
In February 2019, OEHHA withdrew the regulation and proposed an amendment to limit its effect to just those chemicals on the Proposition 65 list of carcinogens as of March 15, 2019.
Today’s announcement means that the regulation will be effective on October 1, 2019, when it will be published as section 25704 of Title 27 of the Code of Regulations. The final language of the regulation is as follows:
§ 25704. Exposures to Listed Chemicals in Coffee Posing No Significant Risk
Exposures to chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.
NOTE: Authority cited: Section 25249.12, Health and Safety Code. Reference: Sections 25249.6 and 25249.10, Health and Safety Code.
This announcement is welcome news for all businesses that roast, package, distribute, or sell coffee consumed in California.
However, for the 80 businesses named in Council for Education and Research on Toxics v. Starbucks, et al., currently pending in Los Angeles Superior Court, the fight may not be over yet. The plaintiff in that case has mounted a challenge to the regulation’s legal validity and has contended in court that it does not, in any event, provide a defense to its claims. Litigation on those issues is expected to continue over the short term.
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