If you’ve spent any time in California, you’ve probably seen it. And seen it. And seen it again. An omnipresent warning, etched into a plaque on the wall, or printed on product packaging: “This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.”
California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act, was passed into law by voter initiative in 1986. The most visible impact of the law has been a proliferation of warnings. Businesses employing more than 10 employees are required to post these warnings whenever a product or location poses of a risk of exposure to one of the more than 900 chemicals listed by the California Office of Environmental Health Hazard Assessment (OEHHA.).
One of those chemicals, acrylamide, is a natural byproduct of several methods of food preparation. In particular, the application of high heat to starchy foods, such as occurs when frying, baking or toasting, produces small amounts of acrylamide. Acrylamide is also produced as a byproduct of roasting coffee beans, and because it is water-soluble, the compound makes its way into brewed coffee as well.
The amount of acrylamide found in brewed coffee is modest — an eight ounce cup of Starbucks coffee, for example, contains approximately two micrograms of acrylamide. However, this is still ten times California’s “No Significant Risk Level” of 0.2 micrograms per day. This was enough to form the basis of a lawsuit filed in 2010 that aimed to require coffee sellers and manufacturers to affix warning labels to products sold in California.
On March 28, a Los Angeles superior court judge issued a proposed order rejecting coffee sellers’ arguments that the level of acrylamide in coffee was both safe and a necessary byproduct of producing palatable coffee. Over defendants’ objections, the proposed order went into effect largely unchanged on May 9. This ruling potentially paves the way for a requirement that coffee — and coffee-containing products — sold in California carry a Prop. 65 warning label.
Several parties to the litigation have already opted to settle, including 7-Eleven. Last November, the convenience store giant agreed to pay $900,000 in fines and display warnings in its stores. Others are still fighting the case, but have pre-emptively begun displaying Proposition 65 warnings to limit their exposure. Starbucks has taken this approach.
Because Proposition 65 applies to any product sold in California — regardless of its point of origin — out-of-state manufacturers who sell in California are placed in a bind. Adjusting manufacturing processes to create California-specific packaging can be expensive and in some cases impractical. On the other hand, deciding to omit the warning altogether could create exposure to liability. But including the warning on all packaging risks confusing and alienating non-Californian customers.
That doesn’t mean businesses that sell coffee and coffee-containing products in California need to hit the panic button just yet. Until the court issues a final judgment and the appeals process is exhausted, no binding precedent is established. That may take years.
The court first must hold an entire, separate trial to determine the amount of penalties, and what specific warning requirements should be imposed. Only then will the case conclude at the trial level.
If the judgment is unfavorable, the defendants will likely take their case to an appeals court. According to data collected by the California Judicial Council, the typical case takes about 15 months to work its way through the appeals system; with nearly a hundred parties involved, this is certainly more complex than a typical case.
In the meantime, however, the fact that a final resolution is so far away creates a great deal of uncertainty. And this may encourage more parties to eye the exit doors and attempt to settle out of the case.
Manufacturers, distributors and retailers should also be aware of new Proposition 65 regulations that will go into effect on August 30 of this year. Under these new regulations, a “consumer product” broadly means any article, or component part thereof, including food, that is produced, distributed, or sold for the personal use, consumption or enjoyment of a consumer.” The new regulations do provide “safe harbor” content, and also methods for providing a warning that have been determined to be “clear and reasonable” by OEHHA. Presently, the safe harbor warning merely reads: “WARNING: This product contains a chemical known to the State of California to cause [cancer | birth defects or other reproductive harm].”
The new regulations include visibility requirements such as a minimum six-point font size and the inclusion of a warning symbol (an equilateral triangle containing an exclamation point). The new regulations also require the warning to include a link to the state’s informational website, www.p65warnings.ca.gov, and require the warning to specify exactly which chemical or chemicals are contained in the product.
Specific wordings will be required for various categories of products, including food and beverages. For example, a coffee warning under the new regulations, would contain the following text next to the triangular warning symbol:
WARNING: Consuming this product can expose you to acrylamide, which is known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov/food.
The exact wording required depends on the listed chemicals in the product, and whether the health hazard implicated is cancer or reproductive harm.
Critics of Proposition 65 frequently argue that the sheer ubiquity of warnings has desensitized the public and rendered the warnings meaningless. Unfortunately, while many Californians may not give the warnings a second thought, consumers outside the state are less likely to be familiar with the regulation.
Businesses have taken a variety of approaches when required to include Proposition 65 warnings on their packaging. Because of the “clear and reasonable” standard, manufacturers have taken some liberties in how they formulate their warnings, with the strong caveat that by doing so, they assume the risk that comes from abandoning the safe harbor. For example, in another acrylamide-related case, the California Attorney General approved the following wording in a settlement with Kettle Foods, Inc.:
WARNING: This product contains acrylamide, a chemical known to the State of California to cause cancer. Acrylamide is not added to the products, but is created by browning potatoes. The FDA does not recommend that people stop eating browned potatoes. For more information, see the FDA's website at www.fda.gov
The warnings placed in Starbucks’ California stores take a similar tack, advising visitors that acrylamide “is not added to our products, but results from cooking, such as when coffee beans are roasted or baked goods are baked.” It bears repeating, however, that the safe harbor only applies where warnings specifically adhere to the regulations.
One thing is for certain: the law in this area will continue to change and evolve, and manufacturers that market or sell their goods in California will need to periodically assess their obligations under the law.
About the authors
Sandra Edwards is a partner in Farella Braun + Martel’s San Francisco office and chairs the firm’s Environmental Law Department. She can be reached at [email protected].
Brian Wantz is a law clerk in the firm’s Environmental Law Department. He can be reached at [email protected].