In 1986, California voters passed a public referendum that offered security against toxins in their drinking water. Who could argue with keeping contaminants away from the kitchen faucet? You didn’t need to be a rabid environmentalist to support a measure aimed at protecting your health.
Today, Proposition 65 bears little resemblance to what Californians voted into law. Protecting water has morphed into hunting down chemical traces in everything people eat, drink, touch or breathe. Procedural steps designed to give science the upper hand in tagging substances that cause cancer or reproductive harm have been distorted by political agendas. Worst of all, the business of protecting health has given way to a cottage industry of legal actions by plaintiffs’ attorneys.
Acrylamide is one of the chemicals on the list of substances deemed a carcinogen by California’s Office of Health and Hazard Assessment (OEHHA). Acrylamide arises spontaneously when foods containing certain sugars and asparagine, a protein building block, are cooked at high temperatures. It is found in many foods including bread, breakfast cereals, crackers, potato chips and crisps, cooked asparagus, olives, and to a much lesser degree coffee.
As a natural cooking byproduct, acrylamide has been in these foods since humans began cooking with fire. Levels increase as the cooking process proceeds, and then drop off. If you made your toast darker this morning, you created and consumed more acrylamide than if you ate light toast instead.
In these foods, a sheer accident of chemistry gives rise to the basic chemical makeup of acrylamide in its singular form. What is formed in this way is something different than polyacrylamide, which is comprised of many acrylamide molecules linked by special chemical bonds. Polyacrylamide is an industrial chemical used in grouts, sealants and permanent press clothing.
As one of the 1,000 chemicals on the Proposition 65 list, acrylamide can trigger the statute’s consumer warning requirement when over certain threshold amounts. Similar applications of Proposition 65 have resulted in consumer warnings on fast-food walls for acrylamide in French fries, in supermarket aisles due to mercury in fresh fish, and even on souvenirs bearing lead paint.
Coffee under Siege
Coffee’s involvement with Proposition 65 provides a strong example of how the once popular health measure has become a cottage industry for plaintiffs’ attorneys. Two lawsuits are currently pending against roasters and retailers based on the absence of consumer warnings prior to making coffee available for sale. The industry has mounted a vigorous defense, with a well-supported position that acrylamide in coffee does not call for Proposition 65 consumer warnings.
In both cases, plaintiff Council for Education and Research on Toxics (CERT) brought suit under Proposition 65’s provision for private actions. Originally part of the law because of concern that the state lacked adequate funds for enforcement, private actions have become a common tactic to secure the statutory fines. Reaching as much as $2,500 per day per sale, a significant percentage of any judgment goes not to the state, but to the attorneys who bring the suit. This dynamic is what has turned the once well-intentioned health measure into a cottage industry for the plaintiff’s bar.
Beyond those who have been sued, moreover, many additional coffee proprietors are finding themselves ensnared by Proposition 65. Attorneys around the state are approaching individual shops and small chains with the threat of a lawsuit unless they agree to monetary settlements. For large companies, the sums involved would be minimal, but for these proprietors they can pose a significant burden. However, the significantly larger amounts threatened by Proposition 65 penalties and legal fees court could be a make or break proposition for their businesses.
Coffee is not the only consumable under the Proposition 65 sword. Breakfast cereal makers also face lawsuits based on acrylamide, while orange juice manufacturers are fighting allegations based on lead from the soil in which the oranges were grown. Nor will future suits be limited to acrylamide, mercury or lead given the statute’s ever-growing litany of listed substances.
Adding fuel to the fire, as science methodologies become more sophisticated, ever tinier traces of substances can be isolated in foods. As science “chases zero” in its detection capabilities, the number of substances that may be newly detected could be limitless.
With plaintiffs’ attorneys on the prowl for Proposition 65-listed substances on which to hang new lawsuits and settlement offers, the dangers for food manufactures increase exponentially. It’s a challenge that can easily spin out of control. While legal relief may be in the wings for the coffee industry, a comprehensive solution may need to emerge from the chambers of the California legislature.