SACRAMENTO, Calif. (Legal Newsline) – California’s Chamber of Commerce is asking a federal judge to keep alive its lawsuit challenging a coffee-causes-cancer label that, if missing, subjects its members to lawsuits and statutory penalties.
After state Attorney General Xavier Becerra filed his motion to dismiss on March 30 to CalChamber’s lawsuit over regulation of the chemical acrylamide, a byproduct of coffee beans that have been roasted, the organization submitted its response in early May.
California’s notorious Proposition 65 requires cancer warnings about hundreds of chemicals, one of which is acrylamide. Becerra has claimed there is “strong evidence” from decades of research that it causes cancer in lab animals.
“(B)usinesses — from large companies to corner stores — must either warn consumers that they will be exposed to a chemical ‘known to the state to cause cancer’ or else risk state court litigation in which they face penalties of $2,500 per unit sold if they are unable to bear the expensive burden of scientific proof,” CalChamber’s lawyers wrote.
“Many businesses have been sued to date by both the Attorney General and private enforcers. But because acrylamide forms naturally during cooking and is found in thousands of food products many more businesses remain to be sued.”
To that point, CalChamber says 45 more food companies received notices of violation related to acrylamide in February and more than 100 have since CalChamber initiated its lawsuit last year.
Prop 65 has given California plaintiffs attorneys ample opportunities to sue companies over their warning labels. 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.
“The costs of Proposition 65 litigation, the one-sided nature of its enforcement regime, and the incentives it provides for enforcement by bounty hunters make it uneconomical — deliberately so — for individual businesses to vindicate their First Amendment rights on a case-by-case basis,” CalChamber wrote.
"CalChamber asks this U.S. District Court to resolve this core legal issue under the U.S. Constitution — an issue that no state court has ever finally adjudicated.”
The Council for Education and Research on Toxics is a driving force behind Prop 65 litigation, having sued Starbucks and more than 80 other coffee retailers.
An acrylamide 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. A hearing on motions for summary judgment is scheduled for July 15.
CalChamber is on its second form of the lawsuit, having made a new claim for relief that it hopes will cure deficiencies determined by Judge Kimberly Mueller, a Sacramento federal judge.
“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…”
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.