The Lawyers Who Cried ‘Cancer’

Will Coggin Senior Research Analyst, Center for Consumer Freedom
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Starbucks just can’t seem to win with food activists. The chain was recently scolded by the blogger “Food Babe” for not putting actual pumpkin in a pumpkin spice latte. (Despite the lack of outcry, there is also no pumpkin in seasonings labeled pumpkin pie spice.) Now the coffee company is defending itself in court this week from ridiculous charges brought by activists that its coffee causes cancer.

It’s not the U.S. Food and Drug Administration (FDA) questioning Starbucks’ ingredients — it’s a group of activists and their attorneys. They are using a California law known as Proposition 65 to seek money from the billion-dollar company for failing to brand its coffee with a label: “Warning: this product contains chemicals known to the State of California to cause cancer.”

Thanks to this 1986 law, you can’t go anywhere in California without seeing signs warning of possible cancer or reproductive harm. Proposition 65 requires that if a chemical causes “one excess case of cancer in 100,000 individuals exposed to the chemical over a 70-year lifetime,” there must be a warning label when that chemical is present. So even if there’s just an infinitesimal chance you could develop cancer from handling Christmas lights, California wants a warning label slapped on the packaging.

Starbucks is under fire because California lists acrylamide as a carcinogen. Acrylamide naturally occurs in roasted coffee beans, cooked vegetables, and baked goods. The chemical has been linked to cancer in animals, but only after they’ve been exposed to extremely high doses. The low levels you’d be exposed to in coffee or potato chips aren’t reasons to worry; you’d have to eat roughly 182 pounds of French fries per day in order to reach the level of cancer-causing exposure.

In other words, the California law is so sensitive that it’s like the Weather Service issuing a hurricane warning every time the sky gets cloudy.

Because these signs are everywhere — from coffee shops to airports to parking lots — it’s impossible to understand when there’s a real risk that you could actually develop cancer from exposure. In some cases, like the labeling of coffee or red wine, cancer warnings are being placed on products that studies have actually linked to a lower risk of cancer or heart disease in peer-reviewed studies.

With an ever-growing list of over 800 chemicals, Californians are probably suffering from warning label fatigue. Complying with the law has created headaches for consumers and small businesses, many of which may not know every single ingredient in every product they use or sell.

Unfortunately the effects of this ridiculous law aren’t limited to California businesses. Proposition 65 has a unique “citizen lawsuit” provision that allows activists to file lawsuits against any business in the country that sells products in the state. These “concerned citizens” are then entitled to a portion of the penalties paid by businesses, creating a hefty incentive for these bounty hunters to file as many lawsuits as possible.

Filing Proposition 65 lawsuits has become extremely lucrative. Between 2000 and 2010, businesses paid over $142 million to settle Proposition 65 lawsuits — and that figure doesn’t even include the fines paid by those who opted to go to trial. Almost $90 million, or 68 percent, of those settlement dollars went to attorneys’ fees. For a handful of law firms, Proposition 65 settlements comprise the majority of their caseloads.

Ironically, what started as a “people’s right to know” law has wound up misinforming the public while enriching trial lawyers and their bounty hunter clients.

Unfortunately, because the burden of proving one’s innocence is so high (including expensive laboratory tests), many small businesses simply settle lawsuits out of court rather than risking the expense of a protracted defense in court. Some small businesses have even had to declare bankruptcy in the face of these expensive lawsuits.

Allowing a single state to decide which products are safe and which products need a “warning” creates a regulatory nightmare for manufacturers that want to sell their products nationwide. We don’t need warnings on our lattes; we need Congress to step up and reform our national chemical law, creating nationwide standards for products sold in multiple states.

Will Coggin is a Senior Research Analyst at the Center for Consumer Freedom, a project of the Center for Organizational Research and Education. CORE is supported by a wide variety of businesses and foundations, including those in the hospitality, agriculture, and energy industries.