LOS ANGELES (Legal Newsline) - The group that once hoped to extract settlements to restaurants that sold coffee for lacking a cancer warning salvaged six figures in attorneys fees it was once ordered to pay.
However, the Council for Education and Research and Toxics' overall goal of declaring invalid a regulation that said the warning would be unnecessary failed, in a California Second Appellate District ruling handed down Oct. 26.
CERT operates out of the offices of plaintiff attorney Raphael Metzger and wanted acrylamide, a chemical found in roasted foods like coffee beans, declared a cancer risk under California's Prop 65, which would have required a warning label.
But a 2019 regulation stating otherwise severely damaged CERT's efforts and it tried to have it deemed arbitrary and capricious. It argued the state agency that issued it failed to explain why it departed from a position stated in a 2005 report and failed to address CERT's arguments.
"Contrary to CERT's suggestion, the conclusion that coffee drinkers exceeded the (No Significant Risk Levels under Prop 65) for acrylamide did not encompass a determination that coffee drinking caused cancer," the ruling says.
"(T)he NSRL provides a safe harbor. That an exposure level exceeds the NSRL does not imply it presents a significant risk of cancer."
CERT sued Starbucks and more than 80 other coffee retailers while hitting others with notices of violations. CERT had initial success with big settlements more than 10 years ago, but now has little revenue and doesn’t bother to maintain a website.
In 2019, while litigation was pending, the Office of Environmental Health Hazard Assessment, which implements Prop 65, adopted a regulation that said chemicals previously on the list that were created by making coffee do not pose a significant risk of cancer.
This led to summary judgment for defendants, which was affirmed by the Second District's ruling. CERT also argued its litigation efforts caused some companies to include Prop 65 warnings and moved for attorneys fees, which was rejected.
"(T)hese temporary warnings proved unnecessary and therefore conferred no significant benefit on the public, rendering CERT ineligible for fees," the Second District wrote.
Starbucks, Dunkin' Brands and two other company sought to punish CERT for its efforts, arguing CERT rejected their fair settlement offers and caused excessive litigation. The trial court agreed and ordered CERT to pay nearly $700,000.
The Second District reversed that ruling, finding the settlement offers included overly broad releases.
CERT has a fight in the U.S. Court of Appeals for the Ninth Circuit regarding an injunction that put a stop to its litigation.
The Ninth Circuit recently upheld the injunction and a related order against CERT, ruling unanimously that the litigation raised First Amendment questions because medical authorities disagree on whether acrylamide is dangerous and thus whether warning labels would be inaccurate.