A mysterious nonprofit made millions suing companies to put California cancer warnings on coffee

The Council for Education and Research on Toxics (CERT) is a nonprofit that kicked off its mysterious existence by filing a string of lawsuits against restaurant chains and coffee roasters for not posting California Proposition 65 notices (the notices are mandatory warnings about the presence of "chemicals known to the state of California to cause cancer and reproductive toxicity") despite the disputed science behind their demands.

The California legislature has formally ended some of CERT's crusade by passing a law that says that Prop 65 warnings never have to be given for coffee. On the eve of this defeat, Ars Technica's Beth Mole (previously) did some deep investigative digging to figure out who was behind CERT.

CERT always had a public face in its attorney, Raphael Metzger of Metzger Law Group — it's his address that's listed on their tax documents. But by digging through documents going back to CERT's formation in 2001, Mole uncovered some of its other principals, officers and associates, including the (now deceased) lawyer/actor C Sterling Wolfe, UC Riverside philosophy prof Carl Cranor, Cal State Long Beach history prof Nancy Quam-Wickham, Nancy Perley, Brad Lunn, and, perhaps most notably, UC Berkeley cancer epidemiologist Martyn Smith.

Smith's connection to the group — whatever it may be — is the most obviously significant because Smith is also a repeat expert witness in the group's suits, and Mole couldn't find any filings or transcripts in which Smith's potential conflict of interest was revealed (Smith's own filings show that CERT funds much of his research — apparently the only activity that CERT undertakes apart from filing lawsuits).

The science that Smith testifies about is highly contestable. Specifically, Smith testifies about the carcinogenic properties of acrylamide, a byproduct of the maillard reaction that is present in many foods and drinks. Though extremely high levels of acrylamide have been linked to cancer in animal models, those levels were significantly higher than the acrylamide you would receive from eating or drinking the foods that Smith and CERT have sued over. For those products, a 2011 comprehensive meta-analysis found "a lack of an increased risk of most types of cancer from exposure to acrylamide."

Still, on the strength of Smith's testimony, many companies ("McDonald's, Burger King, Dunkin' Donuts, Target, Starbucks, Unilever, L'Oreal, Procter & Gamble, Walmart, and more") have settled or lost lawsuits over acrylamide, paying millions to CERT — $3m from McDonald's and Burger King over acrylamide in fries, $900k from 7-Eleven, $675k from BP West Coast Products, etc.

It's not clear what CERT does with that money. Smith's filings show that at least some of it goes to his research.

Mole contacted Cranor, Smith, Quam-Wickham, Metzger, and Berkeley's School of Public Health press office for a quote or explanation. None of them replied.

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 were 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."

The secretive nonprofit that made millions suing companies over cancer warnings [Beth Mole/Ars Technica]

Zach Copley