Proposition 65 warning signs are nearing ubiquity on assorted products sold in California and at various premises in the state.  Among the requirements of Prop. 65, certain landlords must provide warnings to their tenants.  Over the past year, the agency responsible for California’s Prop. 65, the Office of Environmental Health Hazard Assessment, has proposed and reworked a set of tailored regulations aimed at clarifying landlords’ Prop. 65 obligations to provide warnings for exposures to potentially harmful substances at residential rental properties.

Under the proposed regulations, landlords will generally need to provide a warning to each known adult occupants of the building at the time of renting or leasing, and then annually thereafter.  The warnings are generally required when one or more regulated chemicals or substances on the Prop. 65 “list” is present at the building.  There are approximately 900 chemicals and substances on California’s Prop. 65 list.  It includes substances like asbestos and lead that one might encounter at an older building, but also chemicals still going into buildings today, like formaldehyde, which can be an ingredient in resins used in the manufacture of composite wood products used in construction.

The proposed regulations broadly define “residential rental property” as apartments, houses, duplexes, triplexes condos, or “other dwelling that a landlord rents to a tenant to live in, including common areas.”  There are several prescribed methods on how to communicate the warning to the known adult occupants, and that warning will vary depending on the circumstances and what chemicals or substances are present at the rental property.  As one example:

WARNING: Paint on this property can expose you to chemicals including lead and lead compounds which are known to the State of California to cause birth defects or other reproductive harm. Talk to your landlord or the building owner about how and when you could be exposed to these chemicals in your building. For additional information go to www.P65Warnings.ca.gov/apartments.

Importantly, beyond the proposed regulations, landlords will still need to provide specific Prop. 65 warnings for designated smoking areas and enclosed parking facilities.  So, for example, a parking garage at an apartment building needs a specific Prop. 65 warning posted:

WARNING: Breathing the air in this parking garage can expose you to chemicals including carbon monoxide and gasoline or diesel engine exhaust, which are known to the State of California to cause cancer and birth defects or other reproductive harm. Do not stay in this area longer than necessary. For more information go to www.P65Warnings.ca.gov/parking

The prescribed warning for designated smoking areas is:

WARNING: Breathing the air in this smoking area can expose you to chemicals including tobacco smoke and nicotine, which are known to the State of California to cause cancer and birth defects or other reproductive harm. Do not stay in this area longer than necessary. For more information go to www.P65Warnings.ca.gov/smoking-areas.

Property owners and managers who believe their rental stock does not require a Prop. 65 warning because the property does not fit precisely within the definition residential rental property should be cautious.  For example, while a mobile home park may not rent “dwellings,” but rather spaces for the placement of mobile homes, other warnings may be necessary.  For example, a mobile home park with a spa (chlorine), clubhouse (alcoholic beverages), or common playground area (fertilizers) may need Prop. 65 warnings depending on the circumstances.

Violations of Prop. 65 can be pursued by private citizens and fines can be up $2,500 per violation per day.  Litigating a Prop. 65 case can be very expensive.  Companies with ten or more employees should check with their counsel or industry organizations to evaluate their specific Prop. 65 compliance needs.

CMBG3 Law LLC has represented clients in matters with warning label issues for many years. Our attorneys in California are well-versed on Prop 65 issues and requirements. Proposition 65 does not lend itself to a one-size-fits-all approach. If you are a property owner or landlord in California, we recommend seeking legal advice to address your individual situation as the information at this site is not, nor is it intended to be, legal advice. While we invite you to contact us, and welcome you to do so, contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until an attorney-client relationship has been established. If you have any questions or would like more information, please contact Gilliam Stewart (email him or 415-957-2322).