Proposition 65 Warning Signs

Remember "Prop 65," a proposition approved by California voters in 1986 which requires those now ubiquitous signs that say “known to the state to cause cancer, birth defects or other reproductive harm?” The signs are posted on every gasoline pump and every bar that sells alcohol.

Proposition 65 is a right-to-know law that requires businesses to provide clear and reasonable warnings when they knowingly cause exposures to chemicals that the state has listed as causing cancer or reproductive effects. One of the first chemicals listed in 1987 was asbestos, a known carcinogen. What you may not know is that the state has been adding chemicals to the list every year since the law was enacted. There are now around 900 chemicals on the list.

According to the OEHHA website (Office of Environmental Health Hazard Assessment), “the law has prompted the reduction or elimination of lead, arsenic and other toxic chemicals in a variety of products.”

According to the Proposition 65 website, the purpose of this legislation is to enable Californians to make informed decisions about their exposures to these chemicals. The intent of the law was to warn people about invisible hazards in the air we breathe, the water we drink and the products we buy.

However, the statute does not require cancer warnings when exposure to listed chemicals does not cause a significant cancer risk. For instance, in early 2018, there were rumors that coffee would have to have a warning label because it can contain some of the chemicals that are on the list. But in June, OEHHA issued a ruling that said, “drinking coffee does not pose a significant cancer risk, despite the presence of chemicals created during the roasting and brewing process that are listed under

Proposition 65 as known carcinogens. The proposed regulation is based on extensive scientific evidence that drinking coffee has not been shown to increase the risk of cancer and may reduce the risk of some types of cancer.”

According to the OEHHA, it is not clear whether Proposition 65 applies to community associations. Proposition 65, which has been incorporated into California law as the “Safe Drinking Water and Toxic Enforcement Act of 1986” (Health and Safety Code Sections 25249.5 - 25249.14), applies to “persons in the course of doing business.”

Health and Safety Code Section 25249.11 defines “person” to include “corporations” and “associations,” among other things, but does not specially state whether “associations” include “community associations” and does not describe what is meant by the phrase “in the course of doing business.” Said another way, does business mean for-profit operations only? It does not appear that California courts and the OEHHA through legal decisions and advisory rulings, respectively, have addressed whether community associations are corporations or associations that operate "in the course of doing business" within the meaning of Proposition 65.

Community association lawyers have taken the position that Proposition 65 generally does not apply to HOAs because they are not considered to be businesses. HOAs are non-profit corporations that have been formed for the purpose of enhancing and protecting the value, desirability and attractiveness of common interest developments.

In view of the above, there may be situations where Proposition 65 could potentially apply to HOAs. Some local Valley HOAs have restaurants and bars that sell alcohol and allow for the consumption of tobacco products in certain areas (alcohol and tobacco smoke have been designated as hazardous chemicals under Proposition 65). Some HOA vendors potentially handle hazardous chemicals during the scope of their services on HOA property. Under those circumstances, community associations should consult with competent HOA legal counsel to evaluate whether Proposition 65 compliance is necessary, if at all. For example, under the latter example involving HOA vendors, legal counsel may recommend that all contracts must include language that requires the vendor to state whether hazardous materials could be used and to demonstrate how it intends to comply with Proposition 65’s hazardous warning requirement before any work begins at the property. Proposition 65 compliance is critical because the penalties for failure to warn can be as high as $2,500.00 per violation per day. For specific warning labels and more information about Proposition 65 go to the state website https://www.p65warnings.ca.gov/fact-sheets/ designated-smoking-areas.

Susan Browne Rosenberg, CIH, CIEC, CHMM, and CAI EBP, is president and co-owner of Desert Cities Indoor Air, LLC in Palm Desert, CA. Her company assists HOAs in assessing the extent of water damage and mold contamination. She can be reached at (760) 902-2545 or sbriaq@gmail.com.

Kumar S. Raja, Esq. is a senior litigator with the Tinnelly Law Group. Mr. Raja handles a wide variety of the firm’s litigation and general counsel matters. With offices throughout the state of California, the Tinnelly Law Group has exclusively represented community associations for the last thirty (30) years. You can reach Kumar at (949) 484-4223 or kumar@tinnellylaw.com.