SACRAMENTO, Calif. (Legal Newsline) - A new judge is no more receptive to a California group run by a plaintiffs lawyer that wishes to sue companies that don't warn consumers about products like coffee possibly causing cancer.
Judge Daniel Calabretta on Aug. 15 rejected a pair of motions from the Council for Education and Research and Toxics, which operates out of the offices of plaintiff attorney Raphael Metzger. The case concerns acrylamide, a naturally occurring compound that appears in roasted foods and coffee.
In California, products containing certain ingredients that are on the Prop 65 list as possible carcinogens require a warning label. But a 2019 regulation stated it would be unnecessary to include acrylamide on the Prop 65 list, severely hampering CERT's effort to push litigation.
The California Chamber of Commerce sought an injunction against CERT's lawsuits years ago, and Judge Kim Mueller granted it, only to face an attack from CERT that said she should have recused herself.
She did so, but the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court left the injunction in place.
CERT intervened in CalChamber's case and asked new judge Calabretta to dismiss the case because, it said, defendant Attorney General Rob Bonta's interests were aligned with CalChamber's. CERT also moved to vacate Mueller's rulings denying its motion for summary judgment and the injunction for CalChamber.
"[CalChamber] is a bona fide representative of its members which has filed suit to protect their financial interests, and the equitable relief Plaintiff seeks will redound to all its members impacted by Prop 65 labeling requirements for acrylamide in food, making it unlikely that Plaintiff's members will sue subsequently," Calabretta ruled, rejecting the argument CalChamber is not the real party in interest.
"As such, this suit will prevent a multiplicity of suits being filed against Defendant in future, serving prudential concerns, and weighing against dismissal."
Calabretta's order on CERT's motion to vacate the injunction noted its affirmation in higher courts.
The Ninth Circuit agreed with Judge Mueller that the science surrounding acrylamide was subject to “robust disagreement by reputable scientific sources” and the companies stood a good chance of winning their First Amendment arguments.
Smaller businesses in particular often can’t afford the cost of proving that acrylamide levels in their products are safe, the appeals court said, and might be forced to issue a warning they believe to be false in order to avoid ruinous litigation.
The appeals court agreed that CERT had standing to challenge the injunction but rejected the group’s argument it violated its First Amendment rights. Courts have ruled that the First Amendment protects the filing of lawsuits, the appeals court said, but in this case those lawsuits would be “illegal” under the judge’s injunction order and therefore not subject to constitutional protection.
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.