SACRAMENTO, Calif. (Legal Newsline) - A group heavily involved in California’s notorious Prop 65 litigation wants the judge who refused to impose a coffee-causes-cancer warning label thrown off the case.
The Council for Education and Research on Toxics, which has filed more than 100 lawsuits over the chemical acrylamide, filed a motion on Aug. 16 that seeks the disqualification of U.S. District Judge Kimberly Mueller.
Five months ago, Mueller ruled that it is far from settled science that the naturally occurring chemical causes cancer in humans. Acrylamide forms in food that is roasted or cooked, life coffee beans, French fries and toast.
Her ruling came in the California Chamber of Commerce’s challenge to acrylamide’s inclusion on the Prop 65 list, which requires a may-cause-cancer warning in the state. Though the International Agency for Research on Cancer found the signature for acrylamide-related mutations in about a third of tumor genomes in its cancer database, the National Cancer Institute concluded that eating food with the chemical does not increase the risk of cancer.
Given the uncertainty, Judge Mueller said consumers would be misled by a warning that ingesting certain foods containing acrylamide causes cancer. The state might get away with requiring a general warning that acrylamide can cause cancer, but it isn’t “known” that eating specific foods with the chemical causes cancer in humans.
The Council for Education and Research on Toxics, which intervened to protect its interests in the dozens of lawsuits it has filed in state court over the chemical, is now questioning Mueller’s motives.
The motion to disqualify notes that her husband, Robert Johnston Slobe, is the president of the North Sacramento Chamber of Commerce, which “touts itself as both a member of CalChamber and as an entity that works closely with CalChamber on advocacy issues.
Slobe is also the president of the North Sacramento Land Company, which operates an almond ranch in Colusa County – “roasted almonds are a significant source of acrylamide,” the motion says.
Slobe and the NSLC are members of the Sacramento Host Committee, which hosts annual addresses by CalChamber board members and has a calchamber.com email address.
“Thus, there are many connections between Judge Mueller and Plaintiff CalChamber, and financial interests of Judge Mueller’s husband which create conflicts of interest, none of which have been disclosed by Judge Mueller,” the motion says.
“These facts are more than sufficient to lead a reasonable person to conclude that the judge’s impartiality might reasonably be questioned, so disqualification is required.”
In earlier court documents, CalChamber said more than 100 companies have received notices of violation related to acrylamide since it initiated its lawsuit in 2019.
“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.
Though many acrylamide cases await a result, CERT and the plaintiff lawyers it is allied with scored big with two early settlements - $1.25 million from Burger King and $693,500 from McDonald’s.
In 2010, it began its attack on companies that sell coffee, suing Starbucks, Dunkin’ Donuts, 7-Eleven and several others.