Updated Prop 65 Warning Regulation

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Category: Uncategorized

Published 06/26/2019

Information Courtesy of the California Apartment Association

SIGNS ONLY REQUIRED IN SMOKING AREAS AND ENCLOSED PARKING GARAGES

The California Apartment Association has made it easier for landlords to comply with new Proposition 65 “safe harbor” warning requirements, which apply to all California companies with 10 or more employees.

This summer, thanks to a new regulation secured by CAA, landlords will be able to use their rental agreements to communicate most Proposition 65 warnings to tenants – a better alternative than the onerous safe harbor under a prior regulation that took effect in August of 2018. 

Proposition 65, enacted by voters in 1986, requires businesses with 10 or more employees to warn about exposures to chemicals known to cause cancer and birth defects or other reproductive harm.  It does not apply to businesses with nine or fewer employees.  In many instances, the owner of the property is not subject to Proposition 65, but the management company is typically required to comply because the management company has 10 or more employees.

The new apartment regulation, which takes effect July 1, 2019, will allow landlords to comply with Prop 65 by providing most warnings in the lease or through an annual written notice. Ultimately, owners should remove the generic warning signs that they have been posting at all entrances to the property and buildings since 2005 or earlier.

CAA secured the new apartment regulation through its work with the state’s Office of Environmental Health Hazard Assessment, or OEHHA.  CAA also has published a new set of compliance documents, including a Proposition 65 Addendum and instruction sheet, an Annual Proposition 65 Annual Warning Notice and instruction sheet, and an updated Industry Insight background paper. Moreover, CAA will hold a webinar on Prop 65 that can be watched live on June 5 or purchased for streaming later.

When a property owner or management company follows CAA’s warning instructions, they will fall under a safe harbor for complying with Proposition 65. Technically, the new warning methodology is not mandatory; a business may determine its own way to comply. The safe harbor, however, is the only way to be sure that a warning complies with the law without going to court.

This apartment regulation taking effect this summer offers landlords a better alternative to a safe harbor Prop 65 warning scheme under current regulations. 

Prop 65 warning scheme under current regulations. 

Without the regulation change obtained by CAA, owners and companies with 10 or more employees would have been required to post a warning, listing one or more specific chemicals that can cause cancer or reproductive harm in each “affected area.”

After Prop 65 warnings are issued to all tenants and adult occupants through the lease or annual notice, generic Prop 65 signs can be removed, as they are no longer required for the safe harbor.

“In other words, the property would have to be festooned with a variety of warning signs: one sign would be about chlorine or bromine by the pool, another about chemicals in the foam cushions of lobby furniture, and another warning about lead paint, yet another about pesticides used in landscaping, etc.,” said Heidi Palutke, CAA’s senior vice president of compliance and education.

PROP 65 SIGNS FOR RENTAL PROPERTIES STILL REQUIRED IN TWO PLACES

Under a separate regulation that took effect last August, property owners and management companies with 10 or more employees must display specific types of Prop 65 signs at enclosed parking garages and designated smoking areas, regardless of warnings listed in the lease or annual notice. These signs are available from CAA and detailed instructions for posting are available here.

WARNING SIGNS FOR ENCLOSED PARKING FACILITIES

  1. Definition of “enclosed parking facility?” The Final Statement of Reasons (which is the agencies non-binding explanation of the regulation), states that “Enclosed” has “its ordinary meaning and is intended to differentiate parking facilities that are open parking lots or open structures from those that are underground or have walls that enclose them to such a degree that engine exhaust can accumulate sufficiently to cause an exposure.” In case of uncertainty, CAA recommends that a sign be posted or that an experienced Proposition 65 attorney be consulted.
  2. Locations for Posting the Sign: The sign must be posted at each public (vehicle or pedestrian) entrance to the enclosed parking facility and placed so that it is readable and conspicuous to individuals before they enter the facility. The sign must be posted so that it is clearly visible under all lighting conditions normally encountered during business hours.
  3. Sign Translation: The signs must be at least 20 by 20 inches and in no smaller than 72-point type.   The warning must be provided in English and in any other languages in which other entrance signage is provided at the facility. Signs in English can be ordered from CAA at this time.

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