California Courts Enforce Cancer Warning for Coffee and Baked Goods

A California court reportedly proposed a ruling on 28 March 2018 that coffee companies operating in California, including Starbucks, Peet's Coffee & Tea, and Seattle's Best, among others, must provide cancer warnings related to the consumption of coffee, baked goods, and other products sold in those stores.

The substance at issue, acrylamide (CAS RN 79-06-1), has been listed since 1990 as known to the state of California to cause cancer. Once a substance is listed under the Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly known as "Proposition 65"), companies must provide prior warning to any person who may be exposed to that chemical. In 2011, the Proposition 65 listing for the substance was updated to reflect that it is also known to cause birth defects or other reproductive harm.

A previous consent judgment agreed to on 21 August 2017 by ampm gas station convenience stores required all restaurants in California operating under the brand to post a 10" x 10" warning sign at each public entrance or at the locations where coffee or coffee condiments are displayed in the restaurant or facility. The required warning language is as follows:

"WARNING: Chemicals known to the State of California to cause cancer and reproductive toxicity, including acrylamide, are present in coffee, baked goods, and other foods or beverages sold here. Acrylamide is not added to our products, but results from cooking, such as when coffee beans are roasted or baked goods are baked. As a result, acrylamide is present in our brewed coffee, including coffee made at home or elsewhere from our beans, ground or instant coffee, baked goods or other foods sold here, in grocery stores or other retail locations. Your personal cancer risk is affected by a wide variety of factors. For more information regarding acrylamide, see www.fda.gov. For more information about acrylamide and Proposition 65, visit www.oehha.ca.gov/prop65/acrylamide.html"

BP West Coast, which operates ampm gas station convenience stores, agreed to pay $675,000 as part of the settlement. 7-Eleven also settled for $900,0000. The decision of 28 March 2018 affects the other defendants, including Starbucks, Peet's, etc., which did not previously settle.

The National Coffee Association (NCA) issued a statement on 29 March 2018 in response to the ruling which stated that the industry is considering appeals and further legal action.

In California, new Proposition 65 warning requirements are coming into force on 30 August 2018. As of this date, companies wishing to avoid enforcement actions must update their Proposition 65 warnings to include a warning symbol, the name of at least one listed chemical, and the URL for the website www.P65Warnings.ca.gov, and, in some cases, translations of warnings, among other changes and with some exceptions.

Acrylamide was also recently added to the European Union’s carcinogens and mutagens directive (Directive 2004/37/EC) in December. In addition to developing in food and coffee, acrylamide is intentionally used as an intermediate in industrial settings, such as in the formulation of mixtures, re-packaging and plastic products, in grouts and cements, and is used in the agriculture, forestry and fishing sectors.

Thousands of global brands partner with Verisk 3E for help avoiding this type of risk while also achieving proactive compliance. To learn how we can help you keep up with all the regulatory and industry announcements affecting your company’s formulations, ingredients, products, suppliers and markets, please contact us.