Last week a Los Angeles County Superior Court ruled that morning lattes are dangerous enough to warrant the same cancer warning as asbestos and lead.
Starbucks and 7-Eleven were among roughly 90 coffee retailers targeted in a 2010 lawsuit from the Council for Education and Research in Toxics, or CERT. The nonprofit alleged that California’s Proposition 65 law required the companies to warn consumers that coffee could expose them to a carcinogen called acrylamide.
Spending any amount of time in the Golden State brings an unwelcome familiarity with the Proposition 65 signs warning that every toothbrush purchase or trip to Disneyland exposes people to chemicals “known to the state of California” to cause cancer, birth defects, or other reproductive harm. After this recent coffee case percolated in the courts for the better part of a decade, California’s over-abundance of caution has finally earned the state law some much overdue criticism.
First and foremost, coffee doesn’t cause cancer. Its safety is reinforced by decades of consistent observations. Most recently, two studies tracked the coffee intake of more than 600,000 individuals over 16 years. Researchers concluded that coffee drinkers have a lower risk of death from heart disease, diabetes, and yes, even cancer. Even unabashed addicts (like myself, full disclosure) who pour their fourth cup before noon aren’t at greater risk.
But brewed coffee does contain anywhere from 3 to 13 parts per billion of acrylamide, a flavorless chemical naturally produced when coffee beans are roasted or foods like bread and potatoes are cooked at high temperatures. According to the National Cancer Institute, although megadoses of acrylamide increase the risk of cancer in rodents, we don’t have evidence that foods containing acrylamide can cause the disease in humans.
So acrylamide might cause cancer, but coffee certainly doesn’t. Still, since acrylamide is listed under Proposition 65, companies with 10 or more employees who sell coffee in California (even out of state retailers) must now disclose that their brews contain a carcinogen.
Proposition 65 was written so poorly that today it requires warnings for 866 individual chemicals – many of which, the American Cancer Society notes, haven’t been proven to the worldwide scientific community to actually cause cancer.
To be fair, there’s room for uncertainty when warnings appear on products less familiar than coffee. Searching for the standard Proposition 65 text on Amazon produces a bevy of dumbbells, yoga mats, and fitness balls supposedly formulated with harmful chemicals. Though we could all afford to be a little more familiar with the exercise equipment gathering dust in the back of our closets, the cancer warnings can be jarring when a consumer doesn’t know how a product is manufactured.
As the warnings are currently written, consumers don’t know what chemical they’re being exposed to, or how much of it is really present. Their dumbbell may contain DINP, a plastic softener with little risk of being absorbed through the skin. Or, it could contain DEHP, which carries a higher risk of absorption and is banned nationwide in all children’s toys in amounts greater than 0.1 percent. But no matter which phthalate is present, if the chemical exists in low enough levels, no workout risks giving you cancer.
Proposition 65’s premise was simple enough: tell consumers when a product or facility carries the real risk of cancer or reproductive harm. “The prospect that warnings might be added to every cup of coffee seemed like a joke back in 1986, when opponents of the proposal touted its potential misuse,”, quipped the Los Angeles Times’ editorial board last fall. But three decades of hindsight – and a lawsuit which hit a little too close to the Keurig – have proven that Proposition 65 isn’t working.
Aside from the glaring reality that California’s rate of seven common cancers — Non-Hodgkin’s lymphoma, and ovarian, testicular, and stomach cancers among them – are either no different from or higher than the national average, Proposition 65 has spurred a multimillion dollar industry where high frequency litigants earn a living forcing businesses into expensive settlements.
CERT, which filed the coffee suit, earned over $240,000 in two previous Proposition 65 settlements. But get this: The organization has no website and shares a mailing address with Metzger Law Group, the firm representing CERT it in its Proposition 65 suits. Through the astroturf nonprofit, Metzger can collect both the attorney fees and a portion of the civil penalties resulting from Proposition 65 settlements. It’s a pretty good gig, if shakedowns are your thing.
Unsurprisingly, the scheme drove manufacturers and retailers to put warning labels on just about every product sold in the state to avoid becoming donors to Proposition 65’s $300 million enterprise. There’s little sympathy for businesses caught exposing their customers to toxins, but as is the case with coffee, people now understand that a Proposition 65 warning doesn’t actually mean a product is dangerous.
And therein lies the problem: Crying wolf enough times teaches the public that a “WARNING” needn’t be heeded. When over-warning is the norm, it’s easier to ignore companies like Procter & Gamble (whose products carried a Proposition 65 warning until recently) when their packaging claims you really – no, we mean it this time – shouldn’t chew Tide Pods.
Since Proposition 65 was brought to fruition by ballot initiative, legislators can’t scrap the measure without direct voter approval. This latest silly deluge of warnings on coffee just might be enough to jolt California voters into action. Sacramento has attempted to alter the law, but even the latest reforms (updated warning language and requiring proof that a product actually contains a chemical before litigants sue) fall short.
If California voters don’t take this opportunity to demand a functional chemical disclosure system, it’s time Congress stepped in to pre-empt the state law. Proposition 65 puts businesses at risk without protecting the public – it’s time for it to go.
Breanne Kincaid is a California native and Research Director at the Washington, DC-based Center for Accountability in Science.
