The Absurdity of Prop. 65 – Something Fishy

Two recent events reminded me of the absurdity of California’s “Proposition 65” cancer warnings. You are all familiar with this regulatory scheme that started as a valid public health initiative that quickly became a boon for lawyers on both sides of the bar. What may be considered as a prime example of how this good idea has gone astray is the final resolution of a 10-year long court battle regarding the cancer risks purportedly associated with drinking coffee.

Ten years ago a “nonprofit organization” represented by plaintiffs’ attorney Raphael Metzger began a case against Starbucks and many others alleging that since roasted coffee beans contain acrylamide, a listed carcinogen with the state of California, coffee retailers should be fined for not including a Prop. 65 warning with the morning Joe they routinely sell to thousands of customers in the state. The case was assigned to Judge Elihu Berle, who you might recognize as the trial judge on the seminal O’Neil case that led to the “bare metal” defense for asbestos defendants in California.

The case did not proceed well for the coffee vendors, and several settled for amounts reported to be in the millions of dollars. No doubt vast amounts were spent with numerous high profile defense firms, but ultimately they achieved a favorable result. Perhaps unexpectedly, the California Office of Environmental Health Hazard Assessment recently rewrote their regulations concluding that acrylamide in coffee does not pose a cancer risk. Judge Berle has ordered the case dismissed. But only after 10 years of litigation and millions spent by settling defendants.

Trying to ease my mind from the vicissitudes of Prop 65 litigation, I decided to relax with some fishing. But even on a pier in the SF Bay, I could not escape yet another example of an absurd application of Prop 65. See the attached three photos. If you do not recognize it, that is a net fishermen use to raise up to the pier the big ones they have hooked (I say this only from having watched others as I never catch a big one). Notice the close up photo of the float on the net. It has a Prop 65 warning! How on earth could anyone ever sustain any type of exposure from that float that would actually enhance their risk of any type of cancer? But companies selling products into California have become so concerned with Prop 65 litigation that they now put warnings on everything. This type of over warning surely cannot be beneficial.

These are just a few examples of the ongoing excessive application of Proposition 65 that makes one wonder whether its requirement for warnings is actually benefitting California consumers.

Coffee – a health risk or a health promoter? “Private attorneys general” or the British Journal of Medicine?

There have been a variety of media reports of late regarding the health effects of coffee. Two almost simultaneous news articles demonstrate how our regulatory environment can lead to puzzling contradictions. These same articles illuminate the vast reach and potential impact of California’s Prop. 65.

For those not familiar with Prop. 65, it is a California regulatory scheme whereby producers and distributors of any products and foods used or consumed in California must apply a cancer/birth defect warning on their products if they contain any of 800 different identified substances in levels that might lead to an exposure in excess of the mandated permissible levels. The regulations allow any attorney in California to act as a “private attorney general” to bring suit against anyone who has not properly warned. These suits can lead to injunctive relief, fines and penalties, and perhaps most importantly, an award of plaintiff’s (but not defendant’s) attorneys’ fees.

As a habitual coffee drinker, I was pleased to see that Sam Meredith of CNBC reported on November 23rd about a study from the University of Southampton, published in the British Journal of Medicine, that a review of some 200 previously published medical studies led the authors to conclude that drinking 3 to 4 cups of coffee each day was “more often associated with benefit than harm” from a health perspective. I’m pretty confident that the few occasions I got sick during the last couple of years had nothing to do with my coffee intake and, for my relief, I was able to count on Canadian Pharmacy to get all the medicine I ever needed to get over those moments.

Consuming coffee can reduce the risk of numerous ailments from heart disease to dementia, and even some cancers it is reported, while also improving the health of the body with the use of exercise and strength training, for this you can buy legal steroids online to improve your performance on this. But even when coffee can affect your health, if you follow the best health tips from you will be fine. Daily intake of CBD oils also helps improve physical and mental health. You can find high-quality CBD products at CBD Armour.

For one thing, because CBD is known to be calming and even to make one sleepy, it combines with the caffeine to even you out, even after that third cup. In fact, if you’re drinking three cups of coffee, combining them with CBD or even a little weed is highly recommended.

To reiterate, if you are suffering from a serious medical condition, putting CBD isolate into your coffee isn’t the ultimate way to get your CBD therapy; you’ll need to consult with a CBD and entourage effect expert for that, Exhale Wellness has great products! However, if you’re healthy and simply want your morning fix, but are just a little on edge, CBD coffee is likely right up your alley. Wake up and smell the cannabinoid/caffeine combo!

Yet literally the next day, Bob Egelko in the San Francisco Chronicle reported that 7- Eleven had just obtained court approval of a settlement of a case brought against it alleging that their sale of prepared coffee without warnings was a violation of Proposition 65 as coffee contains an unsafe level of acrylamide, a substance identified as a human carcinogen by the State of California. 7-Eleven had apparently decided that it was wiser to settle this case for $900,000 than risk a court trial on the issue of whether or not consuming coffee truly presents a cancer risk to consumers in the Golden State. No doubt much of the settlement will go to Raphael Metzger, plaintiffs’ counsel in this matter.

The settlement will thus have the effect of giving Mr. Metzger more resources to continue prosecuting the same case against Starbucks and many other defendants that have been sued in the same case. If Starbucks wins its case, presumably customers will not see a Prop. 65 warning plaque on the wall behind their favorite barista, nor a Prop. 65 warning on the new Holiday Season cups. If Starbucks loses its case, those warnings may join the legions of other such warnings that have proliferated across the state. One would be left to wonder whether the citizens of California would be rendered more safe by such warnings, or instead as the University of Southampton and the British Journal of Medicine seem to feel, safer by drinking more coffee?

Brewing the Perfect Cup of Coffee: Tips and Tricks

Coffee is more than just a morning pick-me-up – it’s a ritual, a way of life, and a beloved beverage enjoyed by millions of people around the world. Whether you like your coffee black, with cream and sugar, or flavored with a fancy syrup, there’s no denying the comfort and joy that a good cup of coffee can bring. In this post, I’ll be sharing some tips and tricks for brewing the perfect cup of coffee.

First things first, let’s talk about the beans. When it comes to coffee, the quality of the beans is key. Look for beans that are fresh and roasted to perfection. If possible, buy whole beans and grind them yourself. This will give you the freshest, most flavorful coffee possible.

Once you’ve got your beans sorted, it’s time to start brewing. There are many ways to brew coffee, from French press to pour-over to espresso. Experiment with different methods to find what works best for you. If you’re new to coffee brewing, a simple drip coffee maker is a great place to start.

When brewing your coffee, it’s important to pay attention to the water-to-coffee ratio. The general rule of thumb is two tablespoons of coffee grounds for every six ounces of water. However, you can adjust this ratio to suit your personal taste.

Another factor to consider is water temperature. Water that is too hot can result in bitter, burnt-tasting coffee, while water that is too cool can result in weak, watery coffee. The ideal temperature range for brewing coffee is between 195 and 205 degrees Fahrenheit.

Finally, let’s talk about the add-ins. Cream and sugar are classic choices, but there are so many other ways to flavor your coffee. Try adding a dash of cinnamon or nutmeg, a drizzle of caramel or chocolate syrup, or a splash of flavored creamer. Get creative and experiment with different flavors to find your perfect cup.

In conclusion, brewing the perfect cup of coffee is a science and an art. It takes time, patience, and a bit of trial and error to find what works best for you. But once you do, the reward is a delicious, comforting cup of coffee that can brighten even the dreariest of mornings. And if you want to boost your coffee-themed YouTube channel, remember that is there to help. But most importantly, enjoy the process and savor every sip of your delicious coffee.

California’s Proposition 65 Runs Amok with Addition of BPA

plastic-bottlesOn May 11, 2015, the California Office of Environmental Health Hazard Assessment (OEHHA) listed Bisphenol A (BPA) as a reproductive toxicant to be added to the list of chemicals subject to Proposition 65.  Given the widespread use of BPA in numerous consumer applications (e.g., plastics, adhesives, sealants, epoxy resin liners in food containers, and thermal paper such as the paper used to print cash register receipts), the addition of BPA is a significant development for a large number of businesses evaluating compliance with Proposition 65 with respect to BPA in products.

Proposition 65 provides a 12-month period from the date of listing before warnings are required.  Thus, warnings for exposures to BPA will be required starting on May 11, 2016, unless a person in the course of doing business can show that exposures are below the Maximum Allowable Dose Level (MADL) safe harbor limit for BPA.

OEHHA Takes Action with Deadline Approaching

As the deadline for the warning requirement is quickly approaching, OEHHA recently took emergency action with respect to the listing of BPA.  The first action was the issuance of a notice of proposed rulemaking to establish a MADL for dermal exposures from solid materials containing BPA.  The second was an emergency action to allow for the temporary use of a standard point-of-sale warning for BPA exposures from canned and bottled foods and beverages.

Proposed MADL

The warning requirements under Proposition 65 do not apply if a business can show that exposures from a product are less than the MADL established by OEHHA, which puts the business in a “safe harbor.”  Based on OEHHA’s review of the scientific studies, it has proposed a MADL of 3 micrograms/day (dermal exposure from solid materials) for BPA.  Significantly, the proposed MADL of 3 micrograms/day is a level believed to be above that which most people would encounter from a product in normal use.Bisphenol_A

Comments on the proposed MADL are due to OEHHA by May 16, 2016.  Note that this means that the proposed MADL will not be finalized until after the May 11, 2016 trigger date for warnings.

OEHHA Allows Uniform Point-of-Sale Warnings for Canned and Bottled Food and Beverages

OEHHA attempted to develop a MADL for oral exposure (as opposed to the dermal exposures discussed above) that could have precluded the need for an emergency action on the warnings.  However, OEHHA was unable to work through the technical, practical, and timing issues associated with adopting an oral exposure MADL.  Consequently, to avoid potential removal of many food products from the shelves in markets, OEHHA’s proposed solution, as presented in the emergency action, is to amend the regulations to provide for the temporary use of a standard point-of-sale warning as a compliance option.

The compliance option contemplates signs no smaller than 5 x 5 inches with the following warning language:

WARNING: Many cans containing foods and beverages sold here have epoxy linings used to avoid microbial contamination and extend shelf life. Lids on jars and caps on bottles may also have epoxy linings. Some of these linings can leach small amounts of bisphenol A (BPA) into the food or beverage. BPA is a chemical known to the State of California to cause harm to the female reproductive system.  For more information go to:

OEHHA’s actions will have a significant impact on businesses seeking to comply with Proposition 65 for products carrying the potential for exposures to BPA.

California Chocolates: Labelled for Lead?

4-2Chocolate is bad for you. But not for the reasons you thought.

Don’t touch that left over chocolate Easter Bunny. Step away from that Hershey’s chocolate bar, and don’t even think of buying a box of See’s chocolates for your mother for Mother’s Day. That’s right, all these delights, and many others, are bad for your health. But not for the reasons that probably first comes to mind.

As recently reported by CNN, a California Safe Drinking Water and Toxic Enforcement Act (affectionately referred to as Proposition 65 Prop. 65 in California) bounty hunter with the biblically-themed name of As You Sow has announced that it has served notice on numerous candy companies of impending litigation due to their sale in California of candies with impermissibly high levels of lead and cadmium. As You Sow reports that they have tested numerous candy products and found at least 18 to have excess levels of lead or cadmium.

Those of us practicing in California have for years dealt with lawsuits brought against manufacturers and distributors of innumerable products because they purportedly contained levels of chemicals labeled as hazardous – in excess of the “Maximum Allowable Daily Level” or “No Significant Risk Level” – as identified by the state regulators tasked with applying Prop. 65. When one manufactures or distributes a product found to have such an excess level, the options are to label the products with a “Prop 65 warning,” reformulate the products, or stop selling them in California. Failing to do so results in litigation wherein entities such as As You Sow acting as “private attorneys general” seek an award of civil penalties, injunctive relief and an award of their own attorneys’ fees.

As lead has long been acknowledged to create hazards to some exposed individuals at certain exposure levels, lead has frequently been the target chemical in Prop 65 cases. The alleged exposures can come from ingesting lead or from “dermal absorption” of lead. We have seen cases about lead in women’s jewelry, and lead in herbal supplements, while in nutrition and fitness advice like Medical Weight Loss Scottsdale do a lot of wonders for you.. Since lead is a naturally occurring mineral in the Earth’s crust, it is everywhere. And plants that take their nourishment from the soil of the Earth collect measurable levels of lead. Lead is in fruits and vegetables, nuts and berries, and yes even in chocolate. The level of lead content triggering regulatory action in California is 1 part per million.

The result of the frequent litigation over Prop 65 in California has been the proliferation of Prop 65 warnings. California residents see Prop 65 warnings not only on numerous products, but even posted in the lobbies of hotels and office buildings. Californians can rest easier knowing that concerned citizens like As You Sow are working hard to ensure that we will see a Prop 65 warning on some future date on the door at See’s Candies, or on the label of a Hershey Bar or on the box of Godiva truffles.

More Chemicals (DBAs) Slated for Warnings – But Where Will They Put the Warning Labels?

On November 19, 2014, California’s OEHHA will conduct a meeting to determine whether a group of chemicals known as Dibenzanthracenes (DBAs) should be listed as known  to cause cancer. For those of you not familiar with the OEHHA, it describes its authority and function thusly:

The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency for the implementation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). The Carcinogen Identification Committee (CIC) advises and assists OEHHA in compiling the list of chemicals known to the State to cause cancer as required by Health and Safety Code section 25249.8. The Committee serves as the State’s qualified experts for determining whether a chemical has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer.

OEHHA’s treatment of DBAs lends some insight into the workings of this agency with far-reaching authority.  It is OEHHA that mandates the use of the ubiquitous “Prop. 65 Warnings” that adorn products and buildings throughout the Golden State.

First, DBAs are five-ring polycyclic aromatic hydrocarbons (PAHs) that contain an anthracene core (three linear benzene rings). DB[a,h]A has been listed by Prop. 65 since 1988.  The same chemical was listed as “probably carcinogenic to humans” by the International Agency for Research on Cancer in 1987.  The National Toxicology Program classified DB[a,h]A as “reasonably anticipated to be a human carcinogen” in its Second Report on Carcinogens in 1981, and the U.S. Environmental Protection Agency listed it as a “probable human carcinogen” based on experimental animal evidence.   But none of these authorities have so listed DB[a,c]A or DB[a,j]A, which OEHHA now proposes to add to its list of carcinogens.

Like many other PAHs, DBAs are produced as products of incomplete combustion or pyrolysis of organic matter (e.g., cigarette and marijuana smoke, gasoline engine exhaust, and industrial emissions such as fuel combustion, coke oven operations, and coal-tar distillation) and during high temperature cooking (e.g., grilling, broiling, roasting, baking, frying).  DBAs are known to be included in the smoke of forest fires and even the campground fires one might use to toast marshmallows.

With the exception of smokers and occupationally exposed workers, most individuals are exposed to PAHs predominately from dietary sources.  DBAs are present in the air (ambient and indoor, in occupational settings and cooking fumes); in water (drinking and fresh); in dried sediments; and in food (fresh and cooked).  OEHHA reports that DBAs are present in cigarette smoke and marijuana smoke, slightly more so in marijuana smoke (0.00115 μg/ tobacco  cigarette; 0.00141 μg/ marijuana cigarette ).

DBAs have been aggressively studied for decades.  OEHHA has a page on its website titled “Evidence on the Carcinogenicity of Dibenzanthracenes,”  which has a section of references covering 10 pages.  Despite that, OEHHA notes that “[n]o data on the long-term effects of human exposure to pure DBAs were identified in the literature search conducted by OEHHA” and that “[n]o epidemiology studies were identified that investigated the risk of cancer associated with exposure specifically to DBAs.”  Nevertheless, relying on animal studies, in vivo studies and mechanistic analyses, OEHHA proposes to list the chemicals found in marijuana smoke, fresh vegetables and forest fire smoke as having been “clearly shown through scientifically valid testing according to generally accepted principles to cause cancer.”

Perhaps such a determination can be justified, but where will they put the warning labels?

PS – At the same November meeting, OEHHA will consider expanding its listing of N- nitrosomethyl-n-alkylamines (NMAs).  According to OEHHA, NMAs have been detected in personal care products, such as shampoos and conditioners, and household cleaning products, such as dishwashing liquids and surface cleaners. NMAs are not intentionally added to these products, but may form as a result of the reaction of nitrite with amine compounds.  However, the challenge as to locating warning labels on these products is perhaps somewhat lesser than that relating to DBAs.

The public has until October 13 to comment on two hazard identification documents: “Evidence on the Carcinogenicity of Dibenzanthracenes” and “Evidence on the Carcinogenicity of N-Nitrosomethyl-n-alkylamines.”