A Superior Court Judge in the latest in a series of Prop 65 cases involving coffee industry has tentatively ruled that the Prop 65 warnings are required. CERT v. Starbucks.( LA Ct. NO. BC435759). The chemical at issue, Acrylamide, is formed in coffee beans during the roasting process and is then introduced into coffee itself when the coffee is brewed. These cases are derived from several cases that were filed against 91 defendant coffee sellers. Several of the defendants have settled both before and during the trial.

The trial was divided into three phases. During earlier phases the Judge ruled that there was no first amendment right related to the warning, that there was no federal preemption, and that the levels in coffee , were not below the “no significant risk” safe harbor level established by regulation.

The tentative ruling addresses in part the question of whether the beneficial effects of coffee outweigh the need to warn for potential cancer impacts. Defendants argued that they can take advantage of an “alternative” safe harbor exposure risk level ( [Title 27 section 25703(b) of the California Code of Regulations), which lays out the required procedure for conducting a “quantitative risk assessment” to establish a safe harbor for a Prop. 65 listed carcinogen.

The trial court has tentatively held that the defendants could not meet the requirements of this section as the risk assessment according to the court looked at acrylamide exposure generally and not at exposure to acrylamide in coffee products.

The defendants have until April 10 to respond to the tentative ruling. If the ruling is not reversed or modified the next phase in the trial would be the calculation of penalties. Some distributors have already begun including the warning to cut off potential liability.

Chocolate Products Settlement.

In additional Prop 65 news a San Francisco Superior Court approved a settlement of a lawsuit alleging that manufacturers of certain chocolate products were required to provide Proposition 65 warnings as the products allegedly contained levels of cadmium and lead above the safe harbor levels for those elements.

The settlement requires manufacturers to provide warnings based on the levels of the two substances in their products. The settlement also requires the parties to establish a panel that will study the origin of the contamination and will make recommendations that could require warnings at lower or higher levels of the two substances. As You Sow v. Trader Joe’s, Consent judgment, 548791.

The total settlement was $925,875, which includes; Civil Penalty: $22,000.00 Attorney(s) Fees and Costs: $900,000.00 and Payment in Lieu of Penalty: $3,875.00. The settlement includes language that allows other manufacturers or sellers of chocolate products to join in the settlement by accepting its terms.

Each of the defendants must provide a Prop. 65 warning on their products one year after the effective date of the settlement- if the products exceed initial levels specified for each product category. After seven years those levels will be reduced to levels specified in the settlement. Those levels are to be modified to be consistent with any of the trigger levels recommended by the expert panel. The language for the warnings is specified in the settlement.