In 2002 Swedish researchers discovered that acrylamide is present at high levels in many cooked foods, prompting the European Food Safety Authority (EFSA) to declare acrylamide in food a “major public health concern.” Today acrylamide is known as a probable human carcinogen, reproductive and developmental toxin. Coffee, a heavily roasted product, is the largest sourse of acrylamide in adult diet and ranks among the highest for acrylamide contamination.

 

The litigation against the coffee industry regarding acrylamide in coffee (CERT v. Starbucks, et al., Los Angeles Sup. Ct. Case No. BC 435759) was initiated in 2010 by The Council for Education and Research on Toxics (CERT), a public benefit organization whose primary charitable purposes are education and research regarding toxic substances. Founded by two University of California professors in 2001, CERT's officers and directors serve without compensation and disburse vertually every dollar that CERT receives by way of contributions, successful Proposition 65 litigation, and cy pres awards in the form of research and education grants, mostly to research scientists and students within the University of California system. CERT has filed numerous amicus curiae briefs in California appellate courts, the California Supreme Court, federal appellate courts, and the United States Supreme Court.

CERT's litigation involves two consolidated cases against approximately 85 coffee roasters and retailers, most of which are members of the National Coffee Association, the California Grocers Association, and the California Chamber of Commerce. CERT gave notice of the litigation to the Attorney General as required by Health & Safety Code § 25249.7(e). However, the Attorney General declined to participate in the litigation, leaving CERT to prosecute the case as a private enforcer.

 

The consolidated cases were assigned to Judge Elihu M. Berle in the Complex Litigation Department of the Los Angeles Superior Court. In the Fall of 2014, Judge Berle tried the Defendants’ No Significant Risk Level and constitutional defenses (Federal Preemption defense and First Amendment defense) and, on September 9, 2015, issued his Phase 1 Statement of Decision, adjudging Defendants’ First Amendment Defense in favor of CERT and against all Defendants.

 

In the Spring of 2016 CERT filed motions for summary adjudication of its prima facie case, based upon a set of facts to which all defendants had stipulated. Judge Berle granted CERT’s motions against all Defendants.

In the Fall of 2017 Judge Berle tried Defendants’ last affirmative defense, their “Alternative Risk Level” defense and, on May 9, 2018, issued a Phase 2 Statement of Decision, adjudging Defendants’ last affirmative defense in favor of CERT and against all Defendants. 

In June 2018, OEHHA proposed a regulation that would nullify Judge Berle’s decision. The new regulation, 27 CCR § 25704, declares that carcinogens in coffee do not present a significant risk of cancer - disregarding the agency’s own findings in its 2005 report. The regulation was adopted in June, 2019, and in January, 2020, Defendants filed a motion for summary judgment based on their new affirmative defense, which the court granted. That decision is curently on appeal.