Proposition 65

Happy Lawyers in LA, LA

Coffee Talk, September 2011

Written by Kerri Goodman-Small & Miles Small

Nothing quite says California like Proposition 65. For those unfamiliar with this exquisite piece of populous voting, Prop 65 was adopted through public vote in the State of California in 1986. Formally known as “The Safe Drinking Water and Toxic Enforcement Act of 1986” the law’s intent was to protect the drinking water supply and consumers from chemicals in consumer products that are known to cause cancer and birth defects. Not a bad goal overall, but the way the law was written, the primary beneficiaries of the law are litigious lawyers through “straw man” plaintiffs.

Proposition 65 itself has become something of a non-issue in california. The warning signs in the windows of stores, banks, carwashes, gun shops (caution – lead in bullets are a known cause of birth defects. No kidding, this is real), parking garages, and essentially all other public places (churches? how about communion wine?) that they have become invisible to Californians. Since there is no penalty for posting too many signs, everyone posts them everywhere. Invisible that is to everyone, except lawyers. The law guarantees that private lawsuits brought “in the public interest” will split the settlement or damages 75 o/o – 25 o/o between the government and the plaintiff, respectively. The grey area that opens the door to litigation is the idea of full, accessible, and clear warning of the potential threat. A sign in the window that the premises contain Prop 65 listed materials does not declare the precise threat.

So, what does this have to do with coffee? In a word, Acrylamide. This chemical, which has been shown to cause cancer and developmental birth defects in males, occurs naturally as part of the chemical changes through roasting, frying, or baking carbohydrate rich products. An element of browning, it is present in many products including bread, muffins, potatoes, roasted vegetables, meat, and of course, coffee.

Coffee- it is in the bean (roasted, not green), the air around the grinders, transferred into the water we use to clean the equipment, and in the smoke from our roasters. What a beautiful and insidious target we are, especially with all our rich and enormous retail chains. Sure enough, a lawsuit is now underway that is split into two parts – the first is directed at the big chains (Starbuck’s, Peet’s, Coffee and Tea Leaf, et. al.) for not providing full labeling and disclosure on cups, bags, machines, pastries, etc that declare that “coffee is known to contain cancer causing agents;” and the second is directed at the major grocery chains for not specifically and adequately disclosing acrylamide content on their front doors.. 

Grocery chains being the kind and generous business partners that they are, immediatley demanded that the roasters selling coffee in their stores indemnify the stores from all damages and  costs associated with defending the lawsuit. One might dismiss this as just ‘the big boys fighting it out again’ until you realize that mixed in with the gigantic roasting companies are small regional roasters serving a limited number of groceries in a local area. You yourself may be servicing a few supermarkets along with your regular whole-sale customers.

These small roasters simply cannot defend themselves in such a complicated and expensive lawsuit and proportionally will ultimately bear the greatest financial burden amongst the defendants.

Fortunately we have the SCAA. On August 20th, Ric Rhinehart finalized negotiations with the National Coffee Association to include the small roasters in California in the NCA legal defense fund defending against this lawsuit. All the small roasters will be considered as a class by the NCA and will be billed as if they are one single defendant. Thousands of dollars of legal costs have now been lowered to only a few hundred dollars – not necessarily cheap but manageable for the small roaster. Additionally, the SCAA will participate financially in representing the legal interests of the small Californian roasters, sharing the expenses incurred by the NCA.

This historic cooperation between the SCAA and NCA recognizes that all of us in the coffee industry have a stake in the long-term success of coffee. The two associations can no longer believe that they represent divergent and unique segments of coffee; the lines of demarcation between the SCAA and the NCA have become blurred. All of our businesses are threatened increasingly by regulatory, economic, and political events that challenge our very survival.

Congratulations to Ric Rhinehart, as well as Robert Nelson at the NCA, for bringing this together, giving small roasters a reasonable chance to defend themselves in an economically feasible way. All roasters and cafes across the country are at risk from Prop 65. We all joke that what happens in California eventually happens everywhere else in the country. Well, sometimes it is not so funny. The implications and costs to our industry are enormous. The large companies will change their packaging in California, which will lead to the cancer warning on their packages countrywide. Consumer awareness will blossom nationwide, and ultimately we will pay a big price for compliance.

Cheers, Kerri & Miles

 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 

 

 

Kerri & Miles