While many of the Proposition 65 headlines relate to consumer products, the fact is that Proposition 65 applies to exposures to listed chemicals, not products per se. Thus, many other entities are also subject to the requirements to provide warnings if an exposure to a listed chemical can occur and safe harbor provisions do not apply. This includes exposures to listed chemicals occurring in residential properties.
According to OEHHA, the apartment industry has long been a target of criticism – and enforcement actions – for allegedly exposing consumers and residents to chemicals that are listed as carcinogens or reproductive toxins on the Proposition 65 list. The apartment industry has expressed concerns regarding the uncertainty about what types of warnings are adequate to satisfy the requirements of the legislation in the context of exposures that residential dwellers may experience. Back in 2016, the California Apartment Association requested that “tailored warnings” be provided to clarify its obligations under the legislation.
In February 2018, OEHHA proposed amendments to Article 6 of the Proposition 65 safe harbor warning regulations for residential rental properties. The regulations pertain to any property rented by a landlord, such as apartments, duplexes, condos and rental homes. The regulators saw the need to provide specific recommendation for the residential housing industry and aligned those requirements with other regulatory amendments that took effect on August 30 of this year.
Section 25607.34 requires that a safe harbor warning for exposure to a listed chemical be given to each adult occupant known to reside in the unit at the time the lease is signed and each year thereafter in hard copy or electronic format. If the lease or other notices between the landlord and tenant are written in any language other than English, then the warning must also be provided in that language. The regulations also require that residential properties issue warnings for exposures in enclosed parking facilities and designated smoking areas.
The safe harbor warnings for residential properties must name at least one chemical for which notice has been issued and include specific language depending on the health risk posed by the chemical accompanied by the word WARNING. The warning must display a pictogram containing an exclamation mark and equilateral triangle. The warning must also include a URL for a webpage that is customized to address warnings for exposures in residential settings. These warnings are applicable in the residential context to furnishings, hardware, electrical components, pest control and landscaping products, construction materials, swimming pools, paint and painted surfaces, and other residential-based materials.
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 Proposition 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].