Appeal briefs were filed by the California Chamber of Commerce on November 25 challenging the ability of the state's Office of Environmental Health Hazard Assessment (OEHHA) to automatically, without scientific review, move substances from a Labor Code list to a Proposition 65 list, thereby deeming the substances as carcinogenic pursuant to Proposition 65. The challenge specifically involved OEHHA's use of what it describes as the "Labor Code Mechanism" to justify listings. The initial round of litigation was unsuccessful.
Coffee is on the Labor Code list. The NCA assisted in the funding of the initial litigation and is helping to fund the appeal as well. Additionally, NCA is an active participant in regular and frequent legal strategy conferences with the Chamber's legal team to ensure that coffee's interests are represented. It is expected that the appeal will not be heard until late spring of 2010.
In related Labor Code litigation, OEHHA in July published a notice of intent to list certain Labor Code chemicals. Coffee was not on the notice of intent to list and was not one of the chemicals identified by name when the Sierra Club filed a motion for summary adjudication in late 2008.
One of the chemicals that was identified in the notice, Styrene, filed suit and was granted a preliminary injunction to prevent listing of Styrene as a Proposition 65 carcinogen based on its IARC 2B listing. Coffee is an IARC 2B listed chemical as well. In awarding the preliminary injunction the court indicated that having "limited evidence" of carcinogenity, as is the case in styrene (and coffee), does not constitute "sufficient evidence," as is required under Prop. 65 listing and labeling requirements. A hearing was held on November 9. The date when the court will issue its final decision is uncertain.
Listed products are exempt from consumer warning labels for the first 12 months after they are listed, if either the federal government governs warnings for the product in a preemptive manner (which is not the case for coffee), or if it can be proven that exposure to the product poses no significant risk based on average daily consumption over a 70 year lifetime.
The NCA's Scientific Advisory Group (SAG) is in the process of evaluating scientific research firms to see if a case can be developed for an exemption to labeling based on a lifetime exposure argument; i.e. that there is no evidence that the average consumption of coffee, by a California coffee drinker over a 70 year lifetime, causes an increased risk of bladder cancer.
