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Take Heed of Prop 65 Amendments

Carrie Rossenfeld Government & Public Policy

New California legislation amending Proposition 65 and governing property signage and warnings goes into effect on August 30. Collin Waring, an attorney with Crosbie Gliner Schiffman Southard & Swanson LLP — a commercial real estate law firm with offices in San Diego and Los Angeles — penned the following article for SoCal Real Estate on what the legislation is and how it will affect commercial-property owners and managers.

Collin Waring | Courtesy CGS3

Business and commercial real estate owners need to take note now of stricter rules regarding property signage and warning regulations, which will come into play at the end of this month. Soon, safe-harbor regulations for Proposition 65 — a California right-to-know law — will be amended and in full effect.

Administrated by the Office of Environmental Health Hazard Assessment (OEHHA), the Safe Drinking Water and Toxic Enforcement Act of 1986 — also known as Proposition 65 — requires commercial businesses with 10 or more employees to provide warnings to Californians about significant exposures to chemicals on their properties that may cause cancer, birth defects, or other reproductive harm. Prop 65 was enacted to protect drinking-water sources from contamination and requires businesses to provide clear warnings before exposing someone to a carcinogen or toxin.

In August 2016, new OEHHA regulations were adopted to expand the safe-harbor warnings for commercial property owners to comply with Proposition 65 — these go into effect August 30, 2018. These new requirements increase the specifics of sign content as well as method of delivery and are dependent on the type of asset class and/or the location of the warning sign. For purposes of this article, we focus on the safe-harbor requirements for a non-smoking area or enclosed parking facility.

The new regulations are significant and far reaching and include:

Specific Sign Requirements:

By law, a warning must be given for listed chemicals unless the exposure is low enough to pose no significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm. The property owner can comply with the Proposition 65 warning sign requirements three ways: 1. installing a sign at the property; 2. mailing, emailing, or otherwise delivering said warning to each person in the affected area, or 3. circulating the warning in a main or local news section in the newspaper with the largest circulation in the applicable area. We will, however, only be focusing on the signage option since the alternatives are not advisable given the requirement to re-issue the warning every three months.

For each commercial property owner who wishes to install a sign, the warning sign must be posted at all public entrances to the affected area in no smaller than 72-point-style font. Additionally, the warning sign must:
• clearly identify one or more sources of exposure (as more fully detailed below);
• be displayed in a conspicuous manner and under such conditions as to make it likely to be seen, read, and understood by an ordinary individual in the course of normal daily activity;
• be displayed in English and in any other language used on other signage in the affected area.

What information must the sign contain?

To be compliant with the law’s requirement for clear and reasonable warnings, the sign must include:
• a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. Where the sign, label, or shelf tag for the product is not printed using the color yellow, the symbol may be printed in black and white. The symbol shall be placed to the left of the text of the warning, in a size no smaller than the height of the word “WARNING”;
• the word “WARNING” in capital letters and bold print.
• For exposures to multiple carcinogens, the words “Entering this area can expose you to chemicals known to the State of California to cause cancer, including [name of one or more chemicals], from [name of one or more sources of exposure]. For more information, go to www.P65Warnings.ca.gov.”
• For exposures to a single carcinogen, the words “Entering this area can expose you to [name of chemical] from [name of one or more sources of exposure]. [Name of chemical] is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.”
• For exposures to listed reproductive toxicants, the words “Entering this area can expose you to chemicals known to the State of California to cause birth defects or other reproductive harm, including [name of one or more chemicals], from [name of one or more sources of exposure]. For more information, go to www.P65Warnings.ca.gov.”
• For exposures to a single reproductive toxicant, the words “Entering this area can expose you to [name of chemical] from [name of one or more sources of exposure]. [Name of chemical] is known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.”
• For exposures to both listed carcinogens and reproductive toxicants, the words, “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 chemicals known to cause cancer and name of one or more chemicals known to cause birth defects or other reproductive harm], from [name of one or more sources of exposure]. For more information, go to www.P65Warnings.ca.gov.”
• For exposures to a single chemical that is listed as both a carcinogen and a reproductive toxicant, the following words may be used, “Entering this area can expose you to [name of chemical] from [name of one or more sources of exposure]. [Name of chemical] is known to the State of California to cause cancer and birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.”

For the last two years, business and property owners have been permitted to continue using existing safe-harbor warnings. Now, commercial property owners and businesses need to take careful note of new amendments to the law and ensure their signage adheres to the new safe-harbor requirements by August 30 — or else their warnings may not be deemed “clear and reasonable.” Penalties for violating Proposition 65 by failing to provide warnings can be as high as $2,500 per violation per day.