Appellate court stays Starbucks coffee labeling case on eve of civil penalties phase

An 11th-hour stay by a state appellate court halted the long-running coffee cancer risk labeling trial just as the civil penalties phase was set to begin Friday.

The brief order by the 2nd District Court of Appeal overturned Los Angeles County Superior Court Judge Elihu Berle's ruling rejecting a motion by Starbucks and Dunkin' Donuts to stop the third phase of trial for calculating nearly 10 years of civil penalties against coffee-producing defendants.

The damages portion of the case appeared on track until a proposed regulation by the state Office of Health Hazard Assessment in June said acrylamide in coffee doesn't cause cancer. Coffee defense attorneys cited this reasoning in their subsequent motions to stay.

This spring, Berle ruled that coffee producers did not prove there was a safe, alternate risk level of acrylamide in coffee, describing the science used by the defense as "unreliable."

Defendants faced civil penalties of up to $2,500 per person per day dating back to April 2009 under California's Proposition 65 health risk product labeling law.

"It's disappointing that the Court of Appeal has stayed the trial, which is nearing conclusion after eight years of litigation, including four years of trial. The court's order apparently lets defendants violate California law," said Raphael Metzger, attorney for the plaintiff, Long Beach nonprofit Council for the Education and Research on Toxics.

The appellate panel -- consisting of Justices Nora Manella and Thomas Willhite Jr., with Los Angeles County Superior Court Judge Gary Micon sitting by assignment -- requested a status update by January.

Starbucks and other coffee makers and vendors have vigorously defended against the lawsuit for nearly a decade. The lawsuit claims coffee sellers are in violation of the Safe Drinking Water and Toxic Enforcement Act of 1986, which was created by Proposition 65.

It lists the chemical acrylamide as a known cancer risk, and the plaintiff is seeking such a warning on coffee cups, or a process to get the acrylamide out of coffee.

A similar action was done by the potato chip industry after facing an acrylamide lawsuit.

BERLE

Settlement is still a possibility but talks have not been fruitful so far. Council for Education and Research on Toxics v. Starbucks Corp. et al., BC435759 (L.A. Sup. Ct., filed Apr. 13, 2010).

"We are grateful to have received the Court of Appeal's order after careful consideration of the matter," said James Schurz of Morrison & Foerster LLP, which represents Starbucks and many other defendants

Coffee defense attorneys say acrylamide is a necessary byproduct of the brewing process that makes coffee drinkable. They cited scientific studies that said a person would have to drink a ridiculously high volume of coffee in a day to be at risk for cancer.

A recent separation of powers lawsuit by Metzger questions the timing of the state's proposed regulation sanctioning acrylamide in coffee and the defense request for a stay, claiming coffee company lobbyists worked with state agencies to thwart the pending litigation. Office of Environmental Health Hazard Assessment, BC721153 (L.A. Super. Ct., filed Sept. 7, 2018).

That case landed before Berle as well. He threw out a motion by the National Coffee Association, which is seeking intervenor status, to disqualify the judge.

Sam Delson, the agency's deputy director, previously told the Daily Journal that the regulation was not in response to the Starbucks case.

Other observers of the case said the proposal was spurred after a study by the International Agency for Research on Cancer, which released a study a day before the state's proposal saying coffee's carcinogenic properties were not harmful to humans.