Recent California Proposition 65 Developments Go Business’s Way for a Change

Introduction

It is rare for anything having to do with California’s infamous Proposition 65 warning law to be welcome news to businesses. While they do not cure Proposition 65’s ills, a dizzying flurry of recent developments that we report on below may prove an exception.

California Proposes Prop 65 Regulation Stating That Chemicals in Coffee Pose No Significant Risk of Cancer

On June 15, 2018, the Office of Environmental Health Hazard Assessment (OEHHA) announced a proposed regulation stating that coffee does not require a Proposition 65 cancer warning. OEHHA’s action was based on a June 13, 2018 monograph on coffee and cancer published by the International Agency for Research on Cancer (IARC), subsequent scientific literature, and OEHHA’s independent statistical analysis of these data.

OEHHA’s statement of reasons for the proposed regulation concludes on scientific grounds that, when found in coffee, exposures to all Proposition 65 chemicals – including acrylamide – that are created as an inherent result of roasting coffee beans or brewing coffee pose no significant risk of cancer. OEHHA further indicates that its proposed action will benefit the health and welfare of California residents by helping to avoid cancer warnings for coffee.

OEHHA’s conclusions are contrary to prior rulings by a California Superior Court in Proposition 65 enforcement litigation concerning acrylamide in coffee in Council for Education and Research on Toxics v. Starbucks Corp. et al., which we continue to defend.

OEHHA will hold a hearing on this proposed regulation on August 16, 2018, and will accept public comments on the proposed regulation until August 30, 2018. The fate of this proposal and its implications if adopted remain to be seen.

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