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New Warning Requirements for Tenants and Landlords Beginning August 30, 2108

You might not know what where it comes from, but you certainly recognize the ubiquitous sign:

Detectable amount of chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm may be found in and around this facility. California Health and Safety Code Section 25249.6

This warning comes to you courtesy of California Health and Safety Code Section 25249.6, part of the California Safe Drinking Water and Toxic Enforcement Act (aka Prop 65) which provides:

No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual...

Beginning August 30, 2018, it's about to get more fun. No longer will a generic warning in an unspecific place suffice, as the State of California is getting specific, very specific and to add teeth to that specificity, the new and improved Prop 65 imposes fines of up to $2,500 per day per violation. It allows your fellow citizens to police you by bringing enforcement actions whenever they believe a violation has occurred AND to recover their attorneys' fees. Those familiar with "rolling plaintiffs" know the pain.

The new Prop 65 makes both the content and the delivery of the warning more specific. It will now look more like this:

" image002.jpg WARNING: Entering this area can expose you to chemicals known to the State of California to cause cancer and birth defects or other reproductive harm, including [name of one or more Listed Chemical(s)], from [name of one or more sources of exposure]. For more information go to www.P65warnings.ca.gov."

The new regulation provides specific warnings for exposures from:

  • Alcoholic beverages, food and non-alcoholic beverages, prescription drugs, dental care, wood dust, furniture products, diesel engines, vehicles, and recreational vessels
  • Enclosed parking facilities, amusement parks, petroleum products, service stations, vehicle repair facilities, and designated smoking areas

The new regulations also bump up the methods by which a warning must be delivered, specific font sizes, "conspicuous" signs and warnings in non-English languages if another language is used for product information or signs.

Under the new system, manufacturers have the primary responsibility for providing Prop 65 warnings. Manufacturers can either put warning labels on their products or provide notice to their distributors, importers or retail outlets that such products require warnings and provide warning signs or other warning materials.

  • These are the new warnings most likely to impact you:
  • Environmental exposure warnings (new Sections 25604 and 25605)
  • Occupational exposure warnings (new Section 25606)
  • Alcoholic beverage exposure warnings (new Sections 25607.3 and 25607.4)
  • Food and non-alcoholic beverage exposure warnings in restaurants (new Sections 25607.5 and 24607.6)
  • Enclosed parking facility engine exhaust exposure warnings (new Sections 25607.20 and 25607.21)
  • Petroleum product exposure warnings (new Sections 25607.24 and 25607.25)
  • Service stations and vehicle repair shops (new Section 25607.26 and 25607.27)
  • Designated smoking area exposure warnings (new Sections 25607.28 and 25607.29)
  • Hotel exposure warnings (new Sections 25067.32 and 25607.33)

Like all new or revised regulatory schemes, the government provides some, but not all, the information you would want.

The new regulations can be found here:https://oehha.ca.gov/proposition-65/crnr/notice-adoption-article-6-clear-and-reasonable-warnings

A side-by-side comparison is here: https://oehha.ca.gov/files/proposition-65/side-sidearticle6pdf

And FAQ are here: https://oehha.ca.gov/proposition-65/proposition-65-faqs

Check with your industry organizations, check with your distributors and do it soon. August 30, 2018, is the magic date. You know the "toxic plaintiffs" have it on their calendar, do you?

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