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In California, Where Cancer Warnings Abound, Coffee Is Next in Line

The Wall Street Journal, January 24, 2018

By: Sara Randazzo

A California court case could turn every cup of coffee here into a jolt of reality on the risks of cancer.

Under a state law, cancer warnings already follow Californians when they enter the lobby of apartment buildings, drive into parking garages and sit down at restaurants. They also pop up on products including kitty litter, ceramic plates and black licorice.

Now, a state judge in Los Angeles is expected to rule in the coming months whether coffee should be labeled as carcinogenic under the three-decade old law, which is meant to warn Californians of potential harms.

“They should just put the label inside my door so I see it when I leave the apartment in the morning,” said doctoral student Steve Haring, who moved to Northern California from Virginia in August. “It’s literally everywhere.”

Coffee is on the hot seat because of the presence of acrylamide, a flavorless chemical produced during the roasting process.

Acrylamide is one of more than 900 chemicals on a list of those known to the state of California to cause cancer, birth defects or other reproductive harm. Businesses must warn about the presence of any of the chemicals under the law, known as Proposition 65.

The chemical, used for industrial processes like making paper and dyes, is also created during the cooking process for many baked and fried foods, including potato chips, bread and french fries.

“So the only thing safe is boiled or steamed food? That’s ridiculous,” said Warren Fong, a retired oncologist in Orange County, Calif., who said he believes Proposition 65 warnings have become useless. “You don’t scream warnings at people when the risk is really low and can’t change behaviors.”

Proponents say the law has kept consumers better informed and led to the reduction of chemicals in many products such as cadmium in jewelry and lead in baby powders.

The coffee case has been brewing since 2010, when Southern California-based nonprofit Council for Education and Research on Toxics, backed by attorney Raphael Metzger, sued dozens of coffee sellers and manufacturers. The coffee defendants, including Starbucks and Keurig Green Mountain, argue the trace amounts of acrylamide in coffee are harmless and outweighed by the health benefits of the drink.

A Starbucks spokeswoman declined to comment. Keurig didn’t respond to requests for comment.

After losing a first phase of the case a few years ago, the coffee companies made their final defense in a bench trial in the fall, arguing the level of acrylamide in coffee should qualify as safe under a limited exception to Proposition 65 for chemicals produced by cooking necessary to make food palatable.

David Kessler, the former head of the U.S. Food and Drug Administration, testified for the defense that coffee is a “staple of the American diet” with known health benefits that should be regulated carefully.

Putting a cancer label on coffee, Mr. Kessler testified, could drive people to get caffeine from arguably less safe sources like soda or caffeine shots.

An expert for the plaintiffs argued that technology can reduce acrylamide levels in coffee while still keeping an acceptable flavor.

A few defendants have bowed out, including 7-Eleven, which agreed late last year to pay $900,000 and put up the warning in its stores. Others, including Starbucks, have hung up Proposition 65 signs near the cream and sugar station as a response to the litigation but could be forced to display the signs more prominently or directly on coffee products—and pay hefty fines.

Mr. Metzger filed his first acrylamide lawsuit in 2002, soon after Swedish scientists first discovered its presence in food. A suit against the fast-food industry and snack makers, jointly prosecuted by the California Attorney General, led to warning labels on french fries and reduced acrylamide levels in potato chips.

The cancer warnings have proliferated in California since 1986, when voters approved the Safe Drinking Water and Toxic Enforcement Act to keep unsafe chemicals out of the water supply and warn residents of the presence of danger elsewhere. The measure passed with 63% of the vote.

The statute allows any private citizen to sue over an alleged violation. Last year, 681 settlements worth $25.6 million were reported to the California attorney general’s office. Attorneys’ fees and costs made up more than 75% of the total. Attorneys have lobbed other acrylamide-related complaints in the past year against prune juice, potato bread and ginger snap cookies.

The warnings have angered other states that say their residents and businesses are affected because it isn’t often feasible to create different labels just for California.

“When disclosures become the rule, not the exception, consumers tend to ignore them,” Republican Missouri Attorney General Josh Hawley said in a recent court brief, joined by attorneys general in 10 other states, arguing against the possible listing of a popular crop herbicide called glyphosate. “An otherwise useful tool becomes transformed into nothing more than irritating ambient noise.”

Many California residents say they see no reason to change their behavior because of the warnings.

“Where are you going to go to escape the signs?” said Helena Hamilton, a 53-year-old healthcare technology programmer in the San Francisco Bay Area. “I’m totally immune to it at this point.”