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Prop 65 Provides Guidance for Rental Properties

The California Office of Environmental Health Hazard Assessment (OEHHA) recently finalized regulations that will take effect on July 1, 2019 to assist managers and owners of residential properties rental with compliance with Proposition 65 requirements.

Under the regulations, a warning will be deemed clear and reasonable if it is provided to “each known adult occupant of the property at the time of renting, leasing…etc.” and “each year thereafter.” The regulations may be provided in: (i) a letter addressed to “each known adult occupant” or to tenants and occupants where the occupant’s names are known or (ii) through an email message to each known adult occupant. The warning may be transmitted in: (i) the lease if such notice is given to all adult occupants who signed or are named in the lease or (ii) following the initial rental year, through a letter or email according to the methods listed above or by including a warning in a renewed lease.

Under Section 25607.35, warnings for rental properties must include the mandatory warning symbol and the word WARNING. It also must identify one or more sources of exposure in the rental unit, name at least one listed chemical, and provide the source for additional information on chemical exposures (P65Warnings.ca.gov/apartments).

OEHHA has issued a fact sheet about potential exposure to chemicals that are known to state to cause cancer or reproductive harm in rental properties including apartments, condominiums and houses. There are numerous chemicals that may present a risk of exposure in rental properties and may prompt a Proposition 65 warning. These include:

  • Formaldehyde, a gas that may be present in building materials including insulation, wood cabinetry, and materials for floor and walls;
  • Carbon monoxide, a colorless and odorless gas that can emanate from fireplaces and unvented gas space heaters;
  • Lead, a heavy metal that may be present in paint chips, vinyl blinds, and plumbing fixtures manufactured before 1997;
  • Asbestos, a natural mineral that may be present in materials in older structures; and
  • Certain pesticides that are already listed on the Proposition 65 list.

Notably, however, these residential rental property warnings do not cover enclosed parking facility warnings or designated smoking area warnings. Separate warnings would need to be provided for exposures occurring in those areas pursuant to Section 25607.20 and 25607.21 (for enclosed parking facilities) and Sections 25607.28 and 25607.29 (for designated smoking areas). Further, insofar as the residential property exposure warnings are intended to address warnings to tenants and occupants, it would appear that separate warnings also may be deemed to be necessary for visitors, if such individuals were exposed to listed chemicals on the property.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your chemical regulatory compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

 

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.