Coffee is now officially free of cancer warnings in California. But the secretive organization that first brewed the legal dispute over the beloved beverage vows to keep fighting.
On Monday, June 3, state officials finally approved a new regulation declaring that coffee poses no significant risk of cancer, thus exempting it from having to carry cancer warnings.
The regulatory move follows lengthy lawsuits from a little-known nonprofit called the Council for Education and Research on Toxics (CERT).
Back in 2010, CERT sued around 90 coffee roasters and brewers, including Starbucks, Folgers, and other big names, claiming that coffee poses cancer risks. That’s despite the fact that no conclusive scientific evidence supports the claim and some data contradict it. Nevertheless, in its legal filings, CERT argued that every cup of joe should be served with cancer warnings, as required by California’s controversial health law, Proposition 65.
Our #Prop65 coffee regulation has been approved, effective 10/1/19. It says exposures to chemicals in coffee listed on or before 3/15 as known to cause cancer, that are created by and inherent in roasting coffee beans or brewing coffee, do not pose a significant cancer risk.
— OEHHA (@OEHHA) June 3, 2019
The regulation approved Monday essentially grants coffee an exemption to Proposition 65 labeling requirements—a move the state hopes will bring a definitive end to the brouhaha. Still, CERT’s lawyer says it will keep fighting, telling the Associated Press that the state’s regulation violates state law and that CERT plans to challenge it in court. If so, the already lengthy legal battle will extend and, potentially, keep the otherwise obscure organization in the spotlight.
Over the years, CERT has taken on giants of industry, including McDonald’s, Burger King, Dunkin’ Donuts, Target, Starbucks, Unilever, L’Oreal, Procter & Gamble, Walmart, and more. It’s also seen millions of dollars in settlements. Yet, despite earning national headlines and occasional big payouts with its lawsuits, little is known about the organization, its operations, or its leadership.
Tax and state documents show that CERT was formed in 2001 and is based in Long Beach, Calif. The physical address CERT lists on its tax documents is the same as that of its lawyer, Raphael Metzger of the Metzger Law Group. Otherwise, CERT has no website or obvious public presence—beyond filing many Proposition 65-based lawsuits over the years.
Since its formation in 2001, the organization has waged complaints against dozens of companies, all alleging Proposition 65 violations for having acrylamide in food, beverages, and personal products. Acrylamide is indeed in various products and foods—a lot of foods.
Acrylamide is formed when foods are browned during roasting, frying, searing, baking, or otherwise heating over 120° Celsius. It’s created via the tasty Maillard reaction, a complex chemical exchange between amino acids (particularly asparagine) and sugars that are reduced during the heating process. As such, it’s found to some extent in a wide variety of foods, like French fries, toasted bread, cereals, cookies, coffee, roasted nuts, prune juice, olives etc.
Health organizations and regulatory agencies have linked acrylamide to cancer risks, largely based on studies in which animals were given large doses—well beyond normal exposure levels in people. The International Agency for Research on Cancer (IARC) classifies acrylamide as a “probable human carcinogen,” while the US National Toxicology Program (NTP) has classified acrylamide as “reasonably anticipated to be a human carcinogen.”
Of course, exposure levels are key to understanding risk. Reviews of reams of epidemiological data and dozens of studies have largely failed to find evidence of increased incidence of cancers linked to dietary acrylamide exposure. A particularly comprehensive meta-analysis by European researchers in 2011, for instance, concluded that studies “consistently suggest a lack of an increased risk of most types of cancer from exposure to acrylamide.”
Still, since 1990, acrylamide has been on California’s list of cancer-causing chemicals maintained under Proposition 65, aka the Safe Drinking Water and Toxic Enforcement Act of 1986. Under this act, Californians are required to be warned about exposures to any of the 900 or so chemicals on the Proposition 65 list. The law has led to a flood of warning signs—as well as lucrative lawsuits from litigious citizens and organizations. In 2017, then-Governor Jerry Brown called for changes to Proposition 65 to try to turn the tide on what he called “frivolous shakedown lawsuits.” But Brown was too late to stop CERT and its many lawsuits.
In 2002, CERT and Metzger sued McDonald’s and Burger King over a lack of cancer warnings on their acrylamide-containing French fries. The suit settled with a $3 million payout, and the fast-food joints agreed to serve up warnings. Metzger also claims that the legal battle led chip maker Frito-Lay to preemptively reduce acrylamide levels in its products.
After French fries, CERT went after acrylamide in body lotions and shampoos, baby foods, and all manner of coffee products. In spring 2018, a judge ruled in CERT’s favor in its case against the 90-or-so coffee sellers, setting the nonprofit up for another big payout. At the time, Metzger told the Associated Press that around a dozen of the defendants had already settled. Included in those agreements was a $900,000 settlement from 7-Eleven and a $675,000 settlement from BP West Coast Products, which runs gas-station convenience stores.
So what does CERT do with all the money it makes from these large settlements? Though CERT’s actual activities are obscure, some clues can be gleaned from its legal documents, which point to a single prominent academic researcher.
State records of CERT’s formation in 2001 flag Metzger as the point person for CERT, but they also list four co-founders who otherwise don’t seem to have an overt connection to the organization. They include C. Sterling Wolfe, a lawyer-turned-actor whom IMDb lists as having passed away on February 15, 2019; one Brad Lunn; Carl Cranor, a philosophy professor at UC Riverside; and Martyn Smith, an endowed chair in cancer epidemiology at UC Berkeley. Tax forms also list Nancy Quam-Wickham, a history professor at California State University in Long Beach, as CERT’s secretary and Nancy Perley as CFO.
Ars wasn’t able to reach co-founders Wolfe and Lunn or CFO Perley. Co-founders Cranor and Smith and secretary Quam-Wickham did not respond to Ars’ repeated calls and emails. Likewise, Metzger also did not respond to several emails and phone messages.
But paper trails from Smith reveal where some of the money goes—as well as a potential mission for the organization. Ars didn’t spot any mention of Smith’s founding role in CERT in any of his academic documents online, such as his . But Smith has testified in CERT’s lawsuits on several occasions as an expert in the field of cancer research.
It’s not clear if Prof. Smith made sure to reveal his role as a co-founder of CERT in those cases. One document filed by Metzger notes Smith’s testimony and refers to him only as “one of the world’s leading researchers regarding the causes of childhood leukemia.” His testimony went on to suggest a link between maternal coffee consumption and childhood leukemia cases. That suggestion conflicts with a large body of research finding no link between cancer risks and coffee consumption. In 2016, an IARC working group of experts found “no conclusive evidence for a carcinogenic effect of drinking coffee.”
A glimpse at Smith’s own research, meanwhile, reveals that CERT is a frequent source of funding for it. Several papers have listed CERT as funding his work (not related to acrylamide) and graduate students.
Thus, Smith appears to benefit directly from CERT, a non-profit he founded. Aside from funding Smith, the organization’s only obvious activities are filing lawsuits under California’s strict chemical exposure laws—lawsuits that apparently involve Smith himself providing expert witness testimony.
Ars reached out to Prof. Smith to ask if he had made clear during legal proceedings in which he testified as a cancer expert that he had helped found CERT. Ars also asked if there was any potential conflicts of interest between Smith’s involvement in CERT’s lawsuits and his research. Smith did not respond. Berkeley’s School of Public Health press office also did not respond to Ars’ emails.
For now, it’s unclear how CERT’s lawsuit against coffee makers will shake out in court given the new regulation exempting coffee from Proposition 65 warnings. But coffee makers, who cheered the regulation—at least those who haven’t already settled with CERT—will likely be emboldened to fight back. In a statement, National Coffee Association USA President & CEO William Murray concluded: “This is a great day for science and coffee lovers.”