Proposition 65 - The Safe Drinking Water and Toxic Enforcement Act of 1986

Post date: Jul 25, 2016 9:27:24 PM

In 1986, California voters passed a new law by a direct ballot initiative to address growing concerns about exposure to toxic chemicals: Proposition 65 - The Safe Drinking Water and Toxic Enforcement Act of 1986, best known as “Prop 65”.  The first statutory requirement of this law protects drinking water sources from substances that may cause cancer or birth defects by prohibiting businesses from knowingly discharging or dumping Prop 65 listed substances into drinking water sources or onto land where the substances can seep into drinking water sources.  

The second statutory requirement is the one that really affects landlords, if they “knowingly and intentionally” cause exposure to listed substances - and believe me, you do.  This requirement is supposed to reduce and/or eliminate exposures to those chemical by providing a clear and reasonable warning to consumers of the presence of listed substances before they are exposed.

The Office of Environmental Health Hazard Assessment (OEHHA) administers the Proposition 65 program, and the California Attorney General's Office enforces it.

What does this mean to me?

Unfortunately, it’s not as simple as “don’t dump chemicals down the drain.”  First and foremost, does this apply to you?

Does your business employ 10 or more employees?  If your answer is yes, then it does apply to you.  If your answer is no, you can breathe a sigh of relief because it doesn’t, but you can continue to read what your poor fellow business owners have to endure.  

You may have seen stickers on your car windows with similar warnings, or at the lead crystal shelf at a department store, or even at restaurants that serve alcohol or shellfish, but we will address how Prop 65 applies to residential rental properties.  For the rest of the article, we will assume this means you.

How to comply?  

There are two ways for you to comply with Prop 65’s requirement of providing a clear and reasonable warning:

• 1. Distribute a Prop 65 Fact Sheet to all tenants: OEHHA Prop 65 Fact Sheet for Tenants

     1. Include it as part of every lease signing process to ensure all new tenants receive it.

     2. If you have never given it to your tenants before or if you purchased a new property and are unsure if the previous owners have done this, better be safe than sorry and send one to every unit.

  2. Post warning signs at entrances to warn people of potential exposure before they enter your premises - this will give them the choice to go in or not.

What Does the Warning Sign Have to State?

Here’s an example of a Proposition 65 warning before August 30, 2018, for an apartment community:

• • A triangular yellow warning symbol on most warnings

And here’s an example of the new warning for buildings built August 30, 2018 and after:

How to post warning signs?

Let’s start with the easiest method.  If you have four (4) or less units, all you have to do is distribute the Prop 65 Fact Sheet, and call it a day - see #1 in the “How to Comply Section?” above.  Thank your lucky stars and continue to read what your fellow landlords have to do with their 5 and more units.

If you operate five (5) or more units, you have the responsibility of making sure you warn tenants, prospective tenants, guests, vendors, delivery personele, their mother, and sister and anybody else that could potentially enter your property.  You do this by posting warning signs at ALL OF THE PRIMARY PUBLIC ENTRANCES - by foot or car.  

You warn them there is a risk that entering the property “can expose them to” chemicals that may cause cancer or birth defects.  This may include exposure to fumes and emissions from building materials and products used to maintain the property, vehicles, tobacco, pest control products, etc.  

Suggested areas to post warning signs:

• • Front pedestrian entries, side entries, rear entries

  • Vehicle entries

  • Any areas not accessed by main entrances must also have a sign at their entry locations or in the surrounding area prior to “entry” - this includes detached/remote laundry rooms, community centers, fitness centers, playgrounds etc.

  • Open area, garden-style, etc properties that do not have main entrances should have signs posted on walkways and/or driveways leading into the property - you can post on walls, gates, fences, etc, any place conspicuous for someone to be forewarned before they enter the property.

As you can see, it is probably not going to be much different inside your property as it is outside, but Prop 65 places the burden on you, the business owner, to make sure clear and reasonable warning has been executed before they step foot inside your property.  Consider it another responsibility and cost of doing business in California.

To find more information, please visit OEHHA’s designate website to Prop 65 at www.p65warnings.ca.gov.

Click here for CAA's Proposition 65 Information for Residents