Proposed changes to warning requirements under Proposition 65 fail to clarify when signs are needed and pose unnecessary burdens and risks to the rental housing industry, the California Apartment Association said this month.
These are among the sentiments in CAA’s June 9 comments to the Office of Environmental Health Hazard Assessment (OEHHA), regarding the agency’s pre-regulatory proposal to change the warnings required under Prop 65.
CAA’s comments also ask that its members be permitted to continue using current Prop 65 warning signs, which differ only slightly from those proposed by OEHHA. Extensive comments were also submitted by the California Chamber of Commerce on behalf of 50 other business associations including CAA.
Proposition 65 prohibits any person “in the course of doing business” from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual … .”
OEHHA’s proposal addresses the “clear and reasonable warning” provision. Currently, there are regulations that provide generic “safe harbor” warning wording, but there is little guidance about how these warnings are to be provided in most contexts.
OEHHA’s intent with the proposal is to:
- Provide more useful information to the public
- Offer businesses greater flexibility and certainty
- Take advantage of the tremendous growth and innovation in technology since 1986, when the voters passed Proposition 65.
While these goals are laudable, OEHHA’s actual proposal to provide more useful information is extraordinarily burdensome and entirely fails to address the key question most businesses have about Proposition 65, which is whether any warning is really required at all.
The proposed requirement that companies gather information about all potential exposures and forward it to OEHHA for inclusion in a public information website is nearly impossible and creates another unfair basis for bounty hunters to target businesses, CAA says in its comments.
The comments also address litigation that involved CAA members and resulted in the creation of warning signs and informational brochures that our members use to this day. CAA has requested that the rental housing industry be allowed to continue providing the existing warnings, which are very similar to the required apartment-specific warnings in OEHHA’s proposal.
CAA’s comments also address OEHHA’s failure to provide guidance for businesses to determine whether a warning is required. And it’s the business that bears the burden of proving that a warning is not necessary.
With over 700 chemicals listed on the state’s website, it’s difficult — if not impossible — to tell whether exposures to listed chemicals that cause cancer, or birth defects or other reproductive harm occur at a level that requires a warning. So, to limit their liability, landlords post Prop 65 signs as a matter of course.
True reform to the proposition would offer property owners practical ways to assess a building’s risk factors so they can make sensible decisions about posting Prop 65 signs and provide useful information to tenants and other people on the property.