Council for Education and Research on Toxics v. Starbucks Corp. et al.

Prop. 65 warning label case over coffee, Product liability

Los Angeles County

Superior Court Judge Elihu M. Berle

James Schurz

Defense attorneys: Morrison & Foerster LLP, James M. Schurz; Rogers Joseph O'Donnell PC, Renee D. Wasserman, Alecia E. Cotton; Nixon Peabody LLP, Gregory P. O'Hara, Lauren M. Michals; Norton Rose Fulbright US LLP, Jeffrey B. Margulies, Lauren A. Shoor; Pillsbury Winthrop Shaw Pittman LLP, Thomas L. Van Wyngarden, Stephanie Angkadjaja; Varner & Brandt LLP, Brendan W. Brandt; O'Melveny & Myers LLP, Dawn Sestito, Adam G. Levine, Kate M. Ikehara; Blaxer Blackman LLP, J.T. Wells Blaxter; Aronowitz Skidmore Lyon APC, Lawrence E. Skidmore, Kathleen C. Lyon; Bryan Cave Leighton Paisner, Megan E. Irwin; Arnold & Porter Kaye Scholer LLP, Trenton H. Norris, Brian K. Condon, Tiffany M. Ikeda

Plaintiff attorneys: Metzger Law Group, Raphael Metzger, Scott P. Brust

Behind your next cup of joe is a contentious 10-year legal battle over whether the coffee industry must include on its products a Proposition 65 warning and pay hundreds of millions of dollars in penalties. The plaintiffs based their claim on the chemical acrylamide, a component of coffee that California has identified as a probable human carcinogen. The defense contended that evolving science casts considerable doubt on any link between coffee and cancer.

Morrison & Foerster LLP represented a defense group of 53 individual coffee roasters and secured bench judgment for all co-defendants that roast, package and distribute more than 90 percent of coffee in the U.S. Council for Education and Research on Toxics v. Starbucks Corp., BC435759 (L.A. Super. Ct., filed April 10, 2010).

But it wasn't easy, said the lead defense counsel, James M. Schurz. "The plaintiffs raised a question that had to be answered once it was out there concerning commonly consumed food source. Coffee is made up of more than 1,000 compounds including antioxidants, which some believe to have cancer-preventive impacts."

As the litigation proceeded over the course of a decade in a three-phased trial, scientific understanding of the issues shifted. The case became the longest-running in the history of the Prop. 65 statute, and the first among many acrylamide cases to have proceeded through trial. Early rulings in favor of the plaintiff turned to a loss after a state health agency adopted a regulation exempting acrylamide from Prop. 65's warning requirement, following coffee-favorable conclusions by the World Health Organization's cancer research agency.

Throughout, Schurz said, the defense tested the conflict between an epidemiological reliance on human studies versus laboratory animal data in predicting human cancer risk. Among the defense experts was Dr. David Kessler, a former FCA commissioner who now co-chairs the Covid-19 task force. "He described the tension between the toxicology of rat studies and risk assessment in public health. Our case became a story of how the system worked."

The plaintiff's lead lawyer, Raphael Metzger, has appealed, blaming former Gov. Jerry Brown for the loss and contending the state regulation was an invalid defense that contravened voters' wishes in passing Prop. 65. "[T]he Governor's Office did not like the politics of the case and officials from the Governor's Office directed the Office of Environmental Health Hazard Assessment to nullify the court's decision in favor of Plaintiff, whereby the agency adopted a regulation that purported to exempt coffee from Proposition 65," Metzger said in an emailed statement.

In earlier comments, Metzger pointed out that Los Angeles County Superior Court Judge Elihu M. Berle had consistently ruled in his favor--until his final ruling in August 2020. "In the 10 years of this litigation, we believe this is the first significant ruling made by Judge Berle which is erroneous."

Asked how many cups of coffee it took to get the defense team through the lengthy litigation, Schurz was stumped. "That's beyond estimation," he said.

-- John Roemer