From Here to CERT-ainty

An enterprising journalist, Michael Waters, recently published an important exposé on the Council for Education and Research on Toxics (CERT). Michael Waters, “The Secretive Non-Profit Gaming California’s Health Laws: The Council for Education and Research on Toxics has won million-dollar settlements using a controversial public health law,” The Outline (June 18, 2018). Digging deep into the shadowy organization, Mr. Waters reported that:

“CERT doesn’t have a website, a social media account, or any notable public presence, despite having won million-dollar judgments by suing corporations. However, files from the California Secretary of State show that in May 30, 2001, four people co-founded the non-profit: C. Sterling Wolfe, a former environmental lawyer; Brad Lunn; Carl Cranor, a toxicology professor at University of California Riverside; and Martyn T. Smith, a toxicology professor at Berkeley.”

Id.

Mr. Water’s investigation puts important new facts on the table about the conduct of the CERT corporation. The involvement of Christopher Sterling Wolfe, a Torrance, California, plaintiffs’ lawyer, is not terribly surprising. The involvement in CERT of frequent plaintiffs’ expert witnesses, Carl F. Cranor and Martyn T. Smith, however, raises serious ethical questions. Both Cranor and Smith were expert witnesses for plaintiffs in the infamous Milward case,1 and after the trial court excluded their testimony and granted summary judgment, CERT filed an amicus brief in the Court of Appeals.2

The rules governing amicus briefs in federal appellate courts require disclosure of the amicus’s interest in the proceedings. By the time that CERT filed its amicus brief in Milward, Cranor and Smith may not have been officers of the corporation, but given CERT’s funding of Smith’s research, these “Founding Fathers” certainly had a continuing close relationship with the corporation.3Coffee with Cream, Sugar & a Dash of Acrylamide” (June 9, 2018). Given CERT’s name, which suggests a public interest mission, the corporation’s litigation activities on behalf of its founders, Cranor and Smith, exhibit a certain lack of candor with the court.

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My discussions with Mr. Waters, and his insightful piece in The Outline, led to a call from Madeleine Brand, who wanted to discuss CERT’s litigation against Starbucks, under California’s Proposition 65 laws, over acrylamide content in coffee. David Roe, a self-styled environmental activist and drafter of California’s bounty hunting law, was interviewed directly after me.4

As every California now no doubt knows, acrylamide is present in many foods. The substance is created when the amino acid asparagine is heated in the presence of sugars. Of course, I expected to hear Roe defend his creation, Proposition 65, generally, and the application of Proposition 65 to the low levels of acrylamide in coffee, perhaps on contrary-to-fact precautionary principle grounds. What surprised me were Roe’s blaming the victim, Starbucks for not settling, and his strident assertions that it was a long-established fact that acrylamide causes cancer.

Contrary to Roe’s asseverations, the National Cancer Institute has evaluated the acrylamide issues quite differently. On its website, the NCI has addressed “Acrylamide and Cancer Risk,” and mostly found none. Roe had outrageously suggested that there were no human data, because of the ethics of feeding acrylamide to humans, and so regulators had to rely upon rodent studies. The NCI, however, had looked at occupational studies in which workers were exposed to acrylamide in manufacturing processes at levels much higher than any dietary intake. The NCI observed “studies of occupational exposure have not suggested increased risks of cancer.” As for rodents, the NCI noted that “toxicology studies have shown that humans and rodents not only absorb acrylamide at different rates, they metabolize it differently as well.”

The NCI’s fact sheet is a relatively short précis, but the issue of acrylamide has been addressed in many studies, collected and summarized in meta-analyses.5 Since the NCI’s summary of the animal toxicology and human epidemiology, several important research groups have reported careful human studies that consistently have found no association between dietary acrylamide and cancer risk.6


1 Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11 (1st Cir. 2011), cert. denied sub nom., U.S. Steel Corp. v. Milward, 132 S. Ct. 1002 (2012).

2 See “The Council for Education and Research on Toxics” (July 9, 2013).

3 A Guidestar Report show that in 2007, the corporate officer were Nancy L. Quam-Wickham and Nancy Perley, in addition to Lunn and Wolfe.

4 Not to be confused with David Roe, the famous snooker player.

5 Claudio Pelucchi, Carlo La Vecchia, Bosetti C, P. Boyle & Paolo Boffetta, “Exposure to acrylamide and human cancer–a review and meta-analysis of epidemiologic studies,” 22 Ann. Oncology 1487 (2011); Claudio Pelucchi, Cristina Bosetti, Carlotta Galeone & Carlo La Vecchia, “Dietary acrylamide and cancer risk: An updated meta-analysis,” 136 Internat’l J. Cancer 2912 (2015).

6 C. Pelucchi, V. Rosato, P. M. Bracci, D. Li, R. E. Neale, E. Lucenteforte, D. Serraino, K. E. Anderson, E. Fontham, E. A. Holly, M. M. Hassan, J. Polesel, C. Bosetti, L. Strayer, J. Su, P. Boffetta, E. J. Duell & C. La Vecchia, “Dietary acrylamide and the risk of pancreatic cancer in the International Pancreatic Cancer Case–Control Consortium (PanC4),” 28 Ann. Oncology 408 (2017) (reporting that the PanC4 pooled-analysis found no association between dietary acrylamide and pancreatic cancer); Rebecca E. Graff, Eunyoung Cho, Mark A. Preston, Alejandro Sanchez, Lorelei A. Mucci & Kathryn M. Wilson, “Dietary acrylamide intake and risk of renal cell carcinoma in two large prospective cohorts,” 27 Cancer Epidemiol., Biomarkers & Prevention (2018) (in press at doi: 10.1158/1055-9965.EPI-18-0320) (failing to find an association between dietary acrylamide and renal cell carcinoma); Andy Perloy, Leo J. Schouten, Piet A. van den Brandt, Roger Godschalk, Frederik-Jan van Schooten & Janneke G. F. Hogervorst, “The Role of Genetic Variants in the Association between Dietary Acrylamide and Advanced Prostate Cancer in the Netherlands Cohort Study on Diet and Cancer,” 70 Nutrition & Cancer 620 (2018) (finding “no clear evidence was found for interaction between acrylamide intake and selected genetic variants for advanced prostate cancer”).

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