SACRAMENTO, Calif. (Legal Newsline) – The California Chamber of Commerce is taking another shot to protect businesses in the state from facing lawsuits over Proposition 65, the state law that requires cancer warnings about hundreds of chemicals – specifically one found in coffee.
The Chamber filed suit last year, alleging Prop 65 violates the First Amendment and has caused years of litigation in state courts. State Attorney General Xavier Becerra initially fought off the case, citing multiple pending lawsuits, and the Chamber recently filed an amended complaint.
The Chamber sought a declaratory judgment protecting the defendants in those cases, like Starbucks. Acrylamide is a byproduct of coffee beans that have been roasted, leading to Prop 65 litigation against the coffee industry.
“(P)laintiff’s requested declaratory relief, if granted, would effectively enjoin the (Starbucks) case, which has been litigated in state court since 2010… because it would decide the issue of the defendants’ affirmative defense for defendants, thereby undoing the state court’s decision issued in 2015, and preventing (the Council for Education and Research on Toxics’) enforcement action from moving forward,” wrote Judge Kimberly Mueller on March 2.
The Chamber alleges in its suit that acrylamide is naturally formed in food when processed with heat or cooked and that "there is no reliable evidence that exposure to dietary acrylamide increases the risk of cancer in humans."
Prop 65 has given California plaintiffs attorneys ample opportunities to sue companies over their warning labels. Earlier this year, marijuana smoke and THC were added to the Prop 65 list.
The California Policy Center says government officials have abused Prop 65 so badly that the public is skeptical about “any chemical that makes the state’s dumb list.”
The state is deciding whether acetaminophen, one of the world’s most common over-the-counter drugs, should be put on the list, which contains approximately 800 chemicals.
State Attorney General Xavier Becerra defended Prop 65 in the Chamber’s lawsuit, arguing that decades of research have produced “strong evidence” that acrylamide causes cancer in lab animals.
The Chamber has made a new claim for relief in an amended complaint that it hopes will cure deficiencies determined by Judge Mueller. Becerra on March 30 moved to dismiss the new complaint.
“This second attempt to invoke federal jurisdiction fares no better than the first,” Becerra’s office wrote.
“(T)he Chamber has not pled facts sufficient to show that private Proposition 65 enforcers are ‘state actors’ for purposes of section 1983, such that their actions can be fairly attributed to the Attorney General.
“To the contrary, Proposition 65’s citizen suit provision is designed to give private parties significant discretion to enforce the Act’s requirement with minimal state involvement…”
One of those private parties is CERT, the group that sued Starbucks and more than 80 other coffee retailers. A cancer warning was imposed when CERT received a favorable state court decision in its litigation, which was followed by a regulation from the state Office of Environmental Health Hazard Assessment that would have nullified it.
CERT is challenging that regulation, and the judge hearing it has decided to defer to the judge who imposed the warning label. The Chamber’s lawsuit against Prop 65 wants to block that from happening.
CERT says it is a prevailing party in the Chamber’s lawsuit and wants it to pay the $157,000 in attorneys fees CERT has incurred. Its top lawyer – Raphael Metzger – charges $850 per hour.
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.