What do coffee, roasted asparagus and French fries have in common? They all contain traces of acrylamide, a chemical produced when heating some food during high-temperature cooking processes. This natural byproduct is the reason state manufacturers and retailers are mandated to label certain food products—such as potato chips and breakfast cereals—as having ingredients known to the state to cause cancer. Failing to do so can cost California businesses dearly.
In this episode of The Workplace, CalChamber Executive Vice President and General Counsel Erika Frank and CalChamber Policy Advocate Adam Regele discuss Proposition 65 and how it has been used as a vehicle to unscrupulously sue businesses across the state.
‘Ripe for Litigation’
What started off as a ballot initiative to inform Californians about the chemicals in their drinking water has snowballed into the most far-reaching consumer right-to-know law in the nation, Regele tells Frank.
A small component in the 1986 Proposition 65 ballot initiative, also known as the Safe Drinking Water and Toxic Enforcement Act, extended the “right to know” to also include consumer products. Regardless of the concentration of a Proposition 65 listed chemical in a product, the law requires that businesses issue consumer warnings if a “reasonable consumer” is being exposed to the particular chemical.
“What is ‘reasonable,’ and what the average consumer consumes is a very difficult assessment and ripe for litigation,” explains Regele.
The most problematic part of the law for businesses is Proposition 65’s private right of action provision, enabling individuals to sue businesses on behalf of the public interest, Regele says.
“[Businesses’] exposure liability is not just to the attorney general, but to any bounty hunter out there,” he says.
An issue with the law is that it requires a cancer warning even if trace chemicals present in the product—not the product itself—meet the state’s conservative exposure levels for triggering the warning requirement. As an example, acrylamide is one of the chemicals on the Proposition 65 chemicals list.
“Acrylamide also is a naturally occurring substance as a byproduct of the roasting of these different food products,” says Regele. “For example, when you roast asparagus, when you bake bread and when you roast coffee beans. Acrylamide is not a chemical added by the manufacturer or the employer; it is a byproduct of that roasting process, so you can’t remove it from the product.”
Yet under Proposition 65, bounty hunters only need to show that the chemical is present and that the product contains that chemical. The burden is now on the business to show that the level of exposure is far below the Proposition 65 safe harbor level, Regele explains.
“If you are under that safe harbor level, you…do not have to warn,” he tells Frank. “The problem is if you don’t warn and get sued, the cost to defend is still significant.”
Fines can reach as high as $2,500 per violation per day, Regele says.
Proposition 65 is enforced by the Attorney General and a cottage industry of bounty hunters. It is where the Attorney General does not see an issue with a product that bounty hunters will show up and go after a company. Moreover, Regele says, the burden of proof lies with the company—businesses are on the hook for hiring experts and conducting chemical concentration reports.
“What really happens as a prudent business decision maker, is that it is cheaper to settle,” says Regele.
Under Proposition 65, manufacturers and employers must decide whether to settle even though they could win, or to litigate and spend thousands of dollars to win a case when it could have been cheaper to settle.
Cancer Warnings for Coffee
The regulations of Proposition 65 have incentivized manufacturers to avoid bounty hunters and place a warning label on their products pre-emptively. This has led to overwarning and it is a big concern for manufacturers, Regele says.
For example, coffee has never been considered a cancerous product, he explains, but bounty hunters sued coffee retailers and roasters, and a lower court ruled last year that cups of coffee sold to consumers do indeed fall under Proposition 65 warning requirements.
“Millions and millions of Americans drink [coffee] with no cancer risks at all and that was precisely why OEHHA [California Office of Environmental Health Hazard Assessment] saw just how absurd the warning issue is becoming such that consumers were starting to ignore warning labels because they were everywhere and were becoming background noise,” Regele says. “Nobody was stopping their Starbucks purchase…because of a Proposition 65 warning.”
OEHHA this year finalized new regulations that exempt coffee from Proposition 65 despite having acrylamide. Unfortunately, other food products with naturally occurring acrylamide were not exempted, he adds.
The CalChamber will continue to work on behalf of employers to protect their business interests in the ongoing debate over Proposition 65 warnings.