Prop 65 Basics: Knowledge is Power
Proposition 65 is an initiative enacted in 1986 which addressed the growing concerns about exposure to toxic chemicals. Within the guidelines of prop 65, California must publish a list of chemicals known to cause cancer or other harmful defects. The list is updated once a year, and has now grown to contain over 900 chemicals. One of the chemicals on the list is acrylamide, which is created naturally through the Maillard reaction when coffee beans are roasted. The coffee industry is being targeted by a series of lawsuits filed by Raphael Metzger and an organization the law firm created called The Council for Education and Research on Toxics (CERT), who is the lead plaintiff in the current lawsuits involving coffee companies.
Large chains like Starbucks and McDonalds have already been dragged through litigation and now their California locations have been seen with signs that read: "Proposition 65 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. The FDA has not advised people to stop drinking coffee or eating baked goods that contain acrylamide. For more information regarding FDA's views, see www.fda.gov. For more information about acrylamide and Proposition 65, visit www.oehha.ca.gov/prop65/acrvlamide.html." But the situation is only getting worse. Smaller coffee companies are now being targeted and the law firms enforcing prop 65 wish to have labels put on all coffee products.
The Coffee Industry Fights Back
The Pacific Coast Coffee Association (PCCA) learned about the Civil Justice Association of California's 2013 Day at the Capitol on March 13th, co-hosted by Californians Against Lawsuit Abuse (CALA). The PCCA has been asked for input on two bills addressing Prop 65 that are being introduced by Assembly member Mike Gatto and Senator Ted Lieu. Springing into action, the organization quickly assembled a Prop 65 task force which "has been created by the PCCA Board to help our members and the coffee industry at large to: better understand the issues presented by California's Proposition 65; be informed of the status and progress of the current litigation involving coffee companies; explore ways to assist and support companies impacted by the lawsuit; prepare for the possibility that labels warning of possible cancer risks may be required on all coffee for sale in the state of California; minimize the potential negative impacts of prop 65 warning label requirements on coffee's overwhelmingly positive image and sales; and to develop strategies to sustain coffee's positive image; explore ways to inform the public of the overwhelming evidence of coffee's Health Benefits support efforts to minimize the abuse of Prop 65 and similar legislation in California and other jurisdictions; and explore any additional strategies members of the Task Force develop to address the issues of prop 65," according to the mission statement. "The response has been very good," says John Hornung, chairperson for the PCCA committee. "We have invited defendants, those served certificate of merits (the first step in the prop 65 lawsuit), members of the PCCA and anyone interested in supporting changes to Prop 65." In July alone, 204 companies were slapped with certificates of merit. "While this is just the beginning, it's a positive start," Hornung continues.
State Your Case
For those coffee companies being targeted by prop 65, the PCCA recommends letting the truth do the talking. "We suggest that the companies put emphasis on how much time and money they have to spend defending themselves in this case," says Hornung. Due to budget cuts and limited staffing, the state cannot enforce every law, so the need for private enforcement came along. However, this private enforcement of prop 65 has provoked a destructive trend of law firms jumping on board with dollar signs in their eyes. Through threatening letters and intimidation, most of the cases are settled out of court. The amount of money these coffee companies must pay is detrimental to their business. But by far one of the most appalling factors of prop 65 is "payments in lieu of penalties," and the blatant misuse of this policy. According to Hornung, "the law states that 75% of the penalties collected go to the state, while 25% go to the plaintiff. However, that's not what's happening." Hornung explains that of the 25%, attorney fees are deducted and the rest should be given to environmental organizations that have a nexus to the original lawsuit. Unfortunately, there has been a pattern of the funds being distributed in a less than ethical fashion. According to Hornung, "studies show that between 2006 and 2011, up to 89% of the money has gone to plaintiff's lawyers and some of the 'environmental' organizations that money is being directed to are nothing but fronts for the plaintiff lawyers. In the coffee cases, co-plaintiff CERT's address is the same as the law offices of Rafael Metzger and we can find no evidence of any work being done or published by this organization other than the filing of lawsuits." With a strengthened incentive for law firms to file suits, the coffee industry must tackle yet another obstacle.
Coffee's undoubted abundance of health benefits will also lead for a strong argument against prop 65. While extremely high doses of acrylamide have been known tocause tumors in lab animals, there have been no studies that show acrylamide in coffee causes tumors in humans. Various research tells of coffee's health benefits, however. Coffee has been linked to a decreased risk of Alzheimer's, Colorectal, Oral, Skin and Prostate Cancer, Type 2 Diabetes, Heart Failure, Gallstone and Stoke. It has also been recognized as a treatment for Parkinson's Disease and the number one source of antioxidants in the American diet. Most relevantly, food scientists at the University of British Colombia have linked many of coffee's healthy compounds to roasting...the very same process where acrylamide is created. In a research report written by John Hornung with Ross Blaufarb, Dr. Takayuki Shibamoto, Professor, Department of Environmental Toxicology, University of California, Davis, was consulted regarding the relationship between acrylamide and some of these other compounds in coffee created during the Maillard Reaction. "This (acrylamide) just doesn't come by itself. It is one of the maybe two thousand different flavor chemicals formed (in the Maillard Reaction) and, ...if you have two chemicals, and you have to discuss about toxicity, then you have to discuss that when they combine, how do they react? Synergistic? Antagonistic? There is no way of knowing. You have to do those studies in order to know the actual toxicity," Dr. Shibamoto says. Additionally, the same reaction that produces the small amounts of acrylamide can quite possibly produce the bevy of antioxidants coffee has become synonymous with.
"New information has us believing that the average coffee drinker does not consume anywhere enough coffee to reach the level where warnings would be required," says Hornung. The Office of Environmental Health Hazard Assessment (OEHHA), the lead agency for the implementation of Prop 65, developed safe harbor levels to determine which products will need warning labels. No Significant Risk Levels (NSRLs) were developed for carcinogens and Maximum Allowable Dose Levels (NSRLs) for chemicals that cause reproductive toxicity. The No Significant Risk Level, or Safe Harbor, for acrylamide is .2 µg/day.
The coffee industry cannot get around acrylamide. Currently, there are no ways to remove it, reduce it or alter it. According to the FDA, "No good techniques have been identified for reducing acrylamide in coffee while preserving taste. Importantly, most proposed measures for reducing acrylamide are still commercially unproven. Additionally, manufacturers will need to know whether these measures affect the taste, stability and safety of a product."
A similar issue was faced by the tuna industry, when prop 65 incorporated Mercury into its list of harmful chemicals and the widely consumed childhood sandwich favorite came under attack. While the victory was narrow in 2009, the canned tuna industry won their case on one of the arguments that "mercury is naturally occurring." The success of the tuna trade, and others that fell victim to the misuse of prop 65, have instilled some optimism in the coffee professionals involved and their legal representation.
The Worst of the Worst Case Scenarios
Should the new labeling laws of Proposition 65 be passed, the effects on the coffee industry would be global. Companies would need to fund and produce separate packaging for the California markets with the appropriate labels, or avoid distribution in the state completely. "It would have a significant effect on everyone, especially those in the 'healthy coffee' sector - where coffee (usually instant) is enhanced with chloragenics or other healthful additives," says Hornung. "The label is misleading. It's telling people coffee is something it's not. This goes against everything prop 65 wanted to achieve in the first place."
The reaction of consumers is a major concern, as the West Coast leads the way in health conscious eating and living ideologies. It cannot be argued that informing the public of harmful chemicals is unnecessary, however incessant and excessive warnings have been shown to confuse the consumer. According to the International Food Information Council Foundation's 2012 Food & Health Survey, while 85% of Americans admit to giving some thought to the safety of their food and beverages over the past year, only 17% report that they have stopped buying a specific brand of type of food due to concerns about its safety. However, a staggering 51% of Americans have concerns over "chemicals" in food and would let that information impact what foods or brands they purchase. A warning label would significantly impact coffee sales, coffee's health benefits would be overshadowed and the world would be a much sleepier place. "Proposition 65 wasn't originally intended for food products when it was written," says Hornung. "The way the regulation is being used now has turned into clumsy science...like taking a three word phrase out of a long speech and saying that's what was meant."
While the laws will only be enforced in the state of California, there are obvious concerns that other states or governments will take notice and follow suit. "Since coffee is all over the American diet, it's something that should be regulated federally," Hornung opines. "It is crucial to highlight the way prop 65 is being misused in order to warn other states and countries for when they might consider crafting their own similar legislation."
Up to Date and Involved
The PCCA task force will be seeing this battle through, with the help of its colleagues at the National Coffee Association, a determined legal team and the support of the coffee community. "We are committed to the ongoing procedures of doing due diligence to protect coffee's positive image," says Hornung. "The issue is also twofold: to amend the law, and provide support for those needing to defend themselves under the current law."
Preventing the legal obligation of warning labels on coffee products is a highly prioritized mission of the PCCA, and Wednesday will mark their first legislative attempt to amend the law." While a 2/3 vote from legislature is needed to amend prop 65, Hornung doesn't dismiss the possibility. "Any attempt to amend the law is a tall order, but first we need to get the ball rolling on Wednesday."
It will be quite an undertaking for the coffee industry...an expensive, time consuming fight going up against the beloved Proposition 65, which in many ways is a good law exposing a lot in the way of industrial pollution.
The PCCA will be sending out updates to its members to keep them abreast of any new developments as they unfold.
The industry needs to work together to promote coffee as a healthy drink and dispel any negative sentiment that prop 65 can create.
Thank you again for joining us for the 2013 Day at the Capitol. With your support, we had 120 attendees join us in Sacramento, held 80 legislative meetings and even got our story told on TV