INTRODUCTION

California apartment and other residential rental property landlords and their agents (e.g., property managers) with more than 10 employees need to comply with the State’s Safe Drinking Water and Toxic Enforcement Act (“Prop 65”).

Today, many landlords comply with Prop 65 by posting signs in building common areas that meet specific size, placement, and content requirements, warning of exposure to certain Prop 65-listed chemicals.

As of July 1, 2019, however, landlords may be required to provide new warnings to their tenants to comply with Prop 65.  This is because OEHHA, the California agency in charge of implementing Prop 65, recently came up with new “safe harbor” requirements.[1]

THE NEW REQUIREMENTS

OEHHA’s new requirements are that warnings be conveyed annually in:  (1) a letter addressed to all known adult tenants and delivered to the rental property, (2) an email to all email addresses the landlord uses to communicate with tenants, or (3) a lease (but warnings in a lease only cover adult tenants that either sign or are named in the lease).

OEHHA also requires that warnings have specific content, including:

  • the symbol 
  • the word “WARNING” in all capital letters and bold print
  • this text:

    [Name of one or more exposure sources(s)[[2]]] on this property can expose you to [name of one or more chemicals[[3]]] which is [are] known to the State of California to cause [“cancer,” “birth defects or other reproductive harm,” or “cancer and birth defects or other reproductive harm”]. Talk to your landlord or the building owner about how and when you could be exposed to this chemical in your building. For additional information go to www.P65Warnings.ca.gov/apartments.

All of the text must be in English as well as any other language the landlord uses in the lease, the rental agreement, or any other disclosures or required notices.

OEHHA’s new requirements also specifically remind landlords that they may need to separately comply with the Prop 65 regulations governing enclosed parking facilities and designated smoking areas.

AN EXAMPLE

An example of a Prop 65-compliant warning is:

 WARNING:  Fireplaces or unvented gas space heaters on this property can expose you to carbon monoxide, which is known to the State of California to cause birth defects or other reproductive harm.  Talk to your landlord or the building manager about how and when you could be exposed to this chemical in your building.  For more information, go to www.P65Warnings.ca.gov/apartments.

QUESTIONS?

OEHHA’s final adopted regulatory text for residential rental property exposure warnings can be found here.

For more information, contact Melissa A. Jones or Bao M. Vu of Stoel Rives LLP.

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[1]  The so-called “safe harbor” warning language is deemed compliant with Prop 65’s requirements.  Prop 65’s regulations specifically allow any other warning that provides a “clear and reasonable warning” prior to exposing an individual to certain chemicals in California.  But with the more specific, detailed regulations discussed in this alert that specifically apply to residential rental properties, other more general, posted warnings might not be enough under Prop 65.

[2]  OEHHA has provided the following examples of potential “exposure source(s)” for residential rental properties:  “fireplaces or unvented gas space heaters,” “paint chips and dust from lead-containing paint,” “use of lead-containing plumbing materials,” “imported vinyl miniblinds manufactured prior to 1997,” “building materials containing urea-formaldehyde resins,” and “asbestos-containing materials, including some ceiling coatings on this property . . . if disturbed.”

[3]  Common Prop 65-listed chemicals found in apartments and other residential rental properties include:  asbestos, carbon monoxide, formaldehyde, carbon monoxide, and lead.