A warning label on coffee smacks of nanny statism

Like many Melbournians, I am a coffee addict — not the phony instant tosh, but the sacred brew mythically discovered by a goat herder in Ethiopia and later commercialized in Yemen and the Arabian Peninsula in the 15th century. Whatever the truth about Kaldi the Ethiopian goat herder and his energized goats who consumed the bean and changed history, much of the world of business and politics today is fueled by copious amounts of coffee.

A California judge’s ruling that coffee be served with a warning label for cancer could imperil that. Californians have been forced to stomach warning labels, and the state’s regulators are seeking to undo the ruling by passing a regulation dispensing with warnings. Now the FDA has stepped in with a statement that “requiring a cancer warning on coffee, based on the presence of acrylamide, would be more likely to mislead consumers than to inform them.” The statement notes “current science indicates that consuming coffee poses no significant risk of cancer. This finding was reflected in a comprehensive report by the World Health Organization’s International Agency for Research on Cancer.” The FDA expressed support for regulations exempting coffee from cancer warnings.

{mosads}So, what’s this tohubohu in a teacup about?

The Los Angeles Superior Court decision was issued in a lawsuit brought by the Council for Education and Research on Toxics (CERT) against Starbucks. The gravamen of the case is that there is a risk of cancer because of the presence of acrylamide, a chemical created by roasting, baking or frying coffee beans.

The case was brought on the foot of California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986. The law was passed by a citizen initiative to “secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.” Californians expressed a strong desire to be informed “about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.” The law requires the state to maintain a list of chemicals known to cause cancer or reproductive toxicity; acrylamide made the list in 1990. Businesses must disclose the presence of these chemicals by “giving clear and reasonable warning.”

CERT, purporting to be a nonprofit with an educational and research mission, appears to be the arm of a tort law firm. It initiated this case in 2010 acting as a “private attorney general” against 91 defendants, including Starbucks, 7-Eleven and others, for failure to provide warnings. The defendants mounted defenses that included a statutory exemption and freedom of speech. Under the statutory exemption, there is no requirement to provide warnings if “the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer.”

During the first phase of the trial, the court determined the defendants failed to show that acrylamide does not meet the “no significant risk” level in coffee. The defendants offered an alternative defense during phase two of the trial — that there is no significant risk “assuming lifetime exposure at the level in question for substances known to the state to cause cancer.” Importantly, this alternative risk level has to be derived from a “quantitative risk assessment” based on “sound considerations of public health support[ing] an alternative level.”

The court ruled the defendants’ experts could not show that acrylamide in coffee satisfied this alternative risk level. In addition, their evidence suffered from numerous flaws — inadmissible and unreliable scientific data, lack of academic qualifications and improper scientific procedures. Defendants also were unable to show that coffee consumption is beneficial to health, whereas the plaintiff produced evidence showing coffee consumption can be harmful to a fetus, children and adults.

This case is a powerful illustration of the unintended consequences of well-intentioned but overly broad legislation. There is no evidence that coffee consumption causes cancer. On the other hand, there is evidence that coffee consumed in moderate amounts may have health benefits. Instead of promoting public health, the case risks triggering confusion among  consumers in California and beyond. Given that Starbucks and other defendants have national and global operations, their compliance burdens may spill beyond California’s borders. Risk-averse businesses might start including cancer warnings on coffee cups in Melbourne and elsewhere, preempting expensive litigation.

Worse, the case may be another example of creeping nanny statism impinging on liberty. Consider some recent examples: the United Kingdom is seeking to ban energy drinks for youths, in addition to television advertising for junk food; London transport has bans on junk food advertising; South Korea is banning coffee in schools; Australia’s Queensland is banning sugary drinks and junk food from public hospitals; and doctors in the United Arab Emirates are seeking a ban on energy drinks for those under 18.

Clearly, these initiatives are motivated by good intentions about the harmful levels of obesity and cardiovascular disease. But do we really need the government to tell us whether we should drink coffee or energy drinks, or eat chips? What happened to personal responsibility and the role of the family? If children are consuming energy drinks, surely the appropriate place for intervention is the family home.

Those who defend these steps will point to failures in parenting and argue that these bans and warning labels are necessary for the protection of vulnerable groups. However, there are alternatives to bans and labels — education, for example. Education is less costly, preserves liberty, emphasizes autonomy, and eliminates unintended consequences and enforcement costs.

In this milieu of nannying, the FDA’s action must be celebrated as a rebuff to the food police. As C.S. Lewis wrote so memorably: “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies.”

Most coffee lovers would tip their mugs to that.

Sandeep Gopalan is a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He previously was co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA’s immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.