Proposition 65, officially the Safe Drinking Water and Toxic Enforcement Act of 1986, was enacted as a ballot initiative in November 1986. The proposition aims to protect the state’s drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm, and requires businesses to inform Californians about possible exposure to such chemicals.

In 2018, the signs and notifications were updated to include language that notified the public of chemical hazards they had the potential to get exposed to. We have received a few questions regarding the signs, their size and the posting requirements. Hence this newsletter. There are no new regulations. This newsletter is simply a review of the changes that took effect in 2018.

Businesses violating Proposition 65 are subject to the following penalties.

• Civil penalties: Up to $2,500 per day for each violation 
• Injunctive Relief: A court may order the business to stop the violation 
• Attorney’s fees: Plaintiffs who win lawsuits can get reimbursement for their attorneys’ fees 

Standard insurance policies typically do not cover civil penalties. Some policies such as directors’ and officers’ policies may provide coverage for Prop 65 violations.

Bounty Hunter Clause. Proposition 65 is enforced entirely through litigation. While California’s attorney general is vested with principal enforcement, Proposition 65 also allows any individual or organization “acting in public interest” to sue for violations. Such individuals or organizations can potentially collect attorney fees and 25% of any penalties assessed. There has been an uptick in the number of cases in recent years with settlements more than $40 million in 2023, up from about $26 million in the previous two years. The case to use your $300 sign kit is even stronger!

Warning Responsibilities for Manufacturers and Retailers. Manufacturers have primary responsibility for providing Proposition 65 warnings. Manufacturers have choices: put warning labels on their products; provide notices to their distributors, importers or retail outlets that a product may cause an exposure to a listed chemical that requires a warning; and/or provide warning signs and other warning materials. Manufacturers can also enter into written agreements with retailers to modify this allocation of responsibility provided the consumer receives a clear and reasonable warning before they are exposed to any Proposition 65 chemical. Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer.

DISCLAIMER: The contents of this newsletter are for informational purposes only and are not to be considered as legal advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 35 years. Sam is a Certified Safety Professional (No. 16515) certified by the National Board of Certified Safety Professionals. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Sam is a member of the American Chemical Society (No. 31176063), American Industrial Hygiene Association (No. 124715), and National Association of Dealer Counsel (NADC). Sam also serves on the Board of Orange County American Industrial Hygiene Association and on CA Industrial Hygiene Council (CIHC). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

We have listed information related to proposition 65 signs as they may apply to your facility. If you have any questions, please do not hesitate to contact us.

1. Label: Environmental Exposure Where to Post: All Public Entrances to Showroom. Size/Font: 72-font Language Warning: English and in any other language used on other signage at the facility.	5. Label: Vehicle Repair Facilities Where to Post: All public entrances to service department Size/Font: 32-font (enclosed in a box) Language Warning: English and in any other language used on other signage at the facility.
2. Label: Food Facilities Where to Post: Waiting areas or any other areas that sells/serves food Size/Font: 28-font 8.5”x11” Language Warning: English and in any other language used on other signage or menus provided at the facility.	6. Label: Service Stations & Gas Pumps Where to Post: Each gas pump Size/Font: 22-font (enclosed in a box) Language Warning: English and in any other language used on other signage at the facility.
3. Label: Smoking Area(s) Where to Post: Smoking area(s) Size/Font: 22-font 8.5”x11” Language Warning: English and in any other language used on other signage in the affected area.	7. Label: Occupational Exposure Where to Post: Employee break area(s) Size/Font: No font size required Language Warning: English and in any other language used on other signage at the break area.
4. Label: Vehicle Exposure Warnings Where to Post: Driver’s side window of all new and used passenger vehicles for sale Size/Font: No font size required but 12 font is recommended.	8. Label: Enclosed Parking Facilities Where to Post: All entrances to parking structures that have an enclosed ceiling Size/Font: 72-font Language Warning: English and if other permanent entrance signage is provided in any other language at the facility.
Language Warning: No foreign language requirement, but include warning labels on the vehicle in other languages if the vehicle has sale signs in other languages.	9.Label: Lead and Lead Compounds Where to Post: Parts Counter at front and back. Size/Font: 32-font Language Warning: English and in any other language used on other signage at the facility.

Disclaimer:  There is no warranty implied or direct or whatsoever as to the completeness or applicability of these signs presented here.  The dealership must use the Proposition 65 Handbook published by California New Car Dealers Association to stay compliant.  The new CNCDA Proposition 65 Handbook is available upon login in the CNCDA Publications.  Guidance on Proposition 65 from California Office of Environmental Health Hazard Assessment (OEHHA) is available at https://oehha.ca.gov/proposition-65 and must be reviewed to ensure compliance.

1.Environmental Exposure – All Public Entrances  WARNING: ENTERING THIS AREA CAN EXPOSE YOU TO BENZENE FROM AUTOMOBILE EXHAUST AND VEHICLE COMPONENT ADDITIVES. BENZENE 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

2. Food facilities– Waiting Areas or Any Location that sells/serves food WARNING: CERTAIN FOODS AND BEVERAGES SOLD OR SERVED HERE CAN EXPOSE YOU TO CHEMICALS INCLUDING ACRYLAMIDE IN MANY FRIED OR BAKED FOODS, AND MERCURY IN FISH, WHICH 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/RESTAURANT

3.Smoking Area  WARNING: BREATHING THE AIR IN THIS SMOKING AREA CAN EXPOSE YOU TO CHEMICALS INCLUDING TOBACCO SMOKE AND NICOTINE, WHICH ARE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. DO NOT STAY IN THIS AREA LONGER THAN NECESSARY. FOR MORE INFORMATION GO TO www.p65warnings.ca.gov/places/designated-smoking-areas

4. Vehicle Exposure Warnings – All New and Used Passenger Vehicles for Sale  WARNING: OPERATING, SERVICING, AND MAINTAINING A PASSENGER VEHICLE OR OFF-ROAD VEHICLE CAN EXPOSE YOU TO CHEMICALS INCLUDING ENGINE EXAUHST, CARBON MONOXIDE, PTHALATES, AND LEAD, WHICH ARE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. TO MINIMIZE EXPOSURE, AVOID BREATHING EXHAUST, DO NOT IDLE THE ENGINE EXCEPT AS NECESSARY, SERVICE YOUR VEHICLE IN A WELL-VENTILATED AREA AND WEAR GLOVES OR WASH YOUR HANDS FREQUENTLY WHEN SERVICING YOUR VEHICLE. FOR MORE INFORMATION GO TO www.p65warnings.ca.gov/products/passenger-vehicle

Consumer Product Warning:  The dealership must use the Proposition 65 warning signs provided by the product manufacturer for products being sold at the facility.  Signs for sales counter provided by the auto manufacturer must be used at parts counter as well.  Labeling of consumer products for sale pursuant to Prop 65 is not within the scope of this memo.  Similarly, any products requiring Prop 65 warnings being sold on the web must have warnings provided on the website.  Dealers may also choose to provide warning on their Repair Orders and customer invoices. Discuss the language with your systems provider.

5.Vehicle Repair Facilities– All Public Entrances to Service and Body Shop  WARNING: BREATHING THE AIR IN THIS AREA OR SKIN CONTACT WITH PETROLEUM PRODUCTS CAN EXPOSE YOU TO CHEMICALS INCLUDING BENZENE, MOTOR VEHICLE EXHAUST, AND CARBON MONOXIDE, WHICH ARE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. DO NOT STAY IN THIS AREA LONGER THAN NECESSARY. FOR MORE INFORMATION GO TO www.p65warnings.ca.gov/places/vehicle-repair-facilities	6. Service Stations & Gas Pumps –Each Gas Pump WARNING: BREATHING THE AIR IN THIS AREA OR SKIN CONTACT WITH PETROLEUM PRODUCTS CAN EXPOSE YOU TO CHEMICALS INCLUDING BENZENE, MOTOR VEHICLE EXHAUST AND CARBON MONOXIDE, WHICH ARE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. DO NOT STAY IN THIS AREA LONGER THAN NECESSARY. FOR MORE INFORMATION GO TO www.p65warnings.ca.gov/places/service-stations
7. Occupational Exposure – Employee Break Area(s) – No Size Requirement WARNING: ENTERING THIS AREA CAN EXPOSE YOU TO BENZENE FROM AUTOMOBILE EXHAUST AND VEHICLE COMPONENT ADDITIVES. BENZENE 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	8. Enclosed Parking Facilities – All Entrances to Parking Structures that have a Ceiling WARNING: BREATHING THE AIR IN THIS PARKING GARAGE CAN EXPOSE YOU TO CHEMICALS INCLUDING CARBON MONOXIDE AND GASOLINE OR DIESEL EXHAUST, WHICH ARE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. DO NOT STAY IN THIS AREA LONGER THAN NECESSARY. FOR MORE INFORMATION GO TO www.p65warnings.ca.gov/places/enclosed-parking-facilities
9. Lead and Lead Compounds – Parts Counter at front and back. WARNING: Lead-acid batteries, battery posts, terminals, and related accessories can expose you to chemicals including lead and lead compounds, which are 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

Disclaimer:  There is no warranty implied or direct or whatsoever as to the completeness or applicability of these signs presented here.  The dealership must use the Proposition 65 Handbook published by California New Car Dealers Association to stay compliant.  The new CNCDA Proposition 65 Handbook is available upon login in the CNCDA Publications section of website, www.cncda.org. Guidance on Proposition 65 from California Office of Environmental Health Hazard Assessment (OEHHA) is available at https://oehha.ca.gov/proposition-65 and must be reviewed to ensure compliance.

On July 23, 2024, the Occupational Safety and Health Standards Board approved the “Heat Illness Prevention in Indoor Places of Employment” (California Code of Regulations, Title 8, Section 3396). This standard establishes safety measures to prevent heat illness.

Where does Cal/OSHA’s Indoor Heat Illness Prevention (IHIPP) Statute apply? All indoor work areas where the temperature or heat index equals or exceeds 87 degrees Fahrenheit (F) when employees are present.  In workplaces where employees wear clothing (possible PPE) that restricts heat removal, the statute applies 82 degrees F. “Indoor” refers to a space that is under a ceiling or overhead covering and is enclosed along its entire perimeter by walls, doors, windows, dividers, or other physical barriers that restrict airflow. In automobile dealerships, most likely areas for this law to apply will be closed shops, parts warehouse etc..  Air-conditioned office and showroom space would be exempt. Temperature & Heat Index:  Temperature can be measured by a thermometer.  Heat Index is calculated based upon temperature and humidity.  In high humidity, sweat does not evaporate creating a dangerous condition for workers.  Heat index calculations require an instrument to read the humidity.  The humidity and the temperature reading are placed on the US Govt. chart on page 2 of this Newsletter and the heat index is calculated.  For example, if the temperature is 84F and the humidity is 70%, the Heat Index is 90 and hence the IHIPP kicks in.  This is above the action level of 87F as listed in para above, employer is now required to document actions as listed below. EMPLOYER ACTIONSMEASURE & KEEP RECORD of the greater of measured temperature and the calculated heat index as temperatures begin rising toward 80°F. Use the log attached. PROVIDE BREAK ROOM/COOL DOWN AREA:  The break room AC must operate below 82°F.  Cool, potable water is required when the temperature or heat index reaches 87°F indoors. TRAIN all supervisory and non- supervisory employees on Heat Illness Prevention.  Find the training memo on the Elearn portal. CA Title 8 CCR 3395 (h)INCLUDE WRITTEN PROCEDURES for Indoor Heat Illness Prevention in the Heat Illness Prevention Plan (HIPP), Injury and Illness Prevention Plan (IIPP), or maintain separately.  The HIPP is available on the CSI Elearn platform under EHS documents.

Note: Cal/OSHA’s outdoor heat illness prevention program at Title 8, Section 3395 has been in effect since 2015.

HEAT INDEX. Heat index is a measure of heat stress that combines relative humidity with air temperature to capture what the temperature feels like to the human body. When the body gets too hot, it begins to sweat to cool itself off.  If the sweat can’t evaporate, the body can’t regulate its temperature. High humidity limits sweat evaporation and prevents effective cooling of the body.

Maintain the Log

1.  Measure the temperature and humidity. Calculate the heat index. RECORD WHICHEVER IS GREATER on the log attached (when > 82°F).Use a shop thermometer to measure temperature in conjunction with an instrument called hygrometer to measure humidity to get the heat index. Alternately, buy an instrument that includes both temperature and humidity (ex: https://buythermopro.com/product/tp53/).

2.   Go to the National Oceanic and Atmospheric Administration (NOAA) website to calculate the heat index (https://www.wpc.ncep.noaa.gov/html/heatindex.shtml) or use the table below.

For example, the indoor thermometer reads 88°F and the hygrometer reads 75%. This means the heat index is 103 (from the NOAA heat index website or the table below). Simply put, it feels hotter due to the high humidity and this, the heat index, is the relevant measure to record.  Because 103 > 88°F, 103 should be recorded in the attached log. NOTE: Maximum temperatures are typically between 1PM and 5PM.

COMPARISON of INDOOR and OUTDOOR HEAT ILLNESS PREVENTION STANDARDS

Requirement	Outdoor Heat (T8CCR 3395)	Indoor Heat (T8CCR 3396)
Scope and Application	Applies to outdoor workplaces	·  Applies to indoor workplaces when the indoor temperature is greater than 82°F.·  The heat index should be used to measure this temperature as it incorporates relative humidity to show how hot it feels to the human body.
Provide Clean Drinking Water	· Provide access to potable water that is fresh, suitably cool, and free of charge. Located as close as possible to work areas.	· Provide access to potable water that is fresh, suitably cool, and free of charge.·     Located as close as possible to work areas and cool-down areas.
Access to Shade and Cool-Down Areas	·For outdoor workplaces, shade must be present when temperatures are greater than 80°F. When temperatures are less than 80°F, shade must be available upon request.·     For indoor workplaces, provide access to at least one cool-down area, such as a break room, which must be kept at a temperature below 82°F using AC or other cooling methods.·     Shade and cool-down areas must be : Blocked from direct sunlight . Large enough to accommodate the number of workers on rest breaks so they can sit comfortably without touching each other. Close as possible to the work areas. For indoor workplaces, the cool-down areas must be kept at less than 82°F and shielded from other high-radiant heat sources.
Cool-Down Rest Periods	· Encourage workers to take preventative cool-down rest periods.·     Allow workers who ask for a cool-down rest period to take one.·     Monitor workers taking such rest periods for symptoms of heat-related illness.
High-Heat Procedures	·  Have and implement procedures to deal with heat when the temperature equals or exceeds 95°F.·    Procedures must include:·    Observing and communicating effectively with workers.·    Reminding workers to drink water and take cool-down rest breaks.	· Not applicable to Indoor Workplaces.
Assessment and Control Measures	· Not applicable to Outdoor Workplaces.	· As temperatures rise above 80F, measure indoor temperature and humidity. Calculate the heat index. If the temperature or heat index is at or above 87F, record whichever is greater of the temperature and heat index on the log attached.  Statute requirements kick-in.·     (For workers in high-radiant-heat areas, or wear clothing that restricts heat removal, the temperature or heat index must be recorded when either reaches 82°F).·     Implement control measures to keep workers safe. Feasible engineering controls must be implemented first.
Monitoring the Weather	Monitor outdoor temperature and ensure that once the temperature exceeds 80°F, shade structures will be opened and made available to the workers. When it is at least 95°F, implement high-heat procedures. Supervisors can use the OSHA-NIOSH heat index tool to quickly check heat index (outdoor).Train supervisors on how to check weather reports and how to respond to weather advisories.	· For indoor workplaces that are affected by outdoor temperatures, train supervisors on how to check weather reports and how to respond to hot weather advisories.·     Train supervisors on how to measure temperature and humidity and calculate the heat index.
Emergency Response Procedures	· Provide first aid or emergency response to any workers showing heat illness signs or symptoms, including contacting emergency medical services.
Acclimatization	·  Closely observe new workers and newly assigned workers working in hot areas during a 14-day acclimatization period, as well as all workers working during a heat wave.
Training	·   Employers must provide training to all employees—supervisory and non-supervisory.
Heat Illness Prevention Plan	·  Establish, implement, and maintain an effective written Outdoor Heat Illness Prevention Plan that includes procedures for providing drinking water, shade, preventative rest periods, close observation during acclimatization, high-heat procedures, training, prompt emergency response.	·  Establish, implement, and maintain an effective written Indoor Heat Illness Prevention Plan that includes procedures for providing drinking water, cool-down areas, preventative rest periods, close observation during acclimatization, assessment and measurement of heat, training, prompt emergency response, and feasible control measures.

TIPS TO BEAT THE HEAT

Ice Machines	Get an ice machine for the employees in the employee lunchroom.
AC Break Rooms	Ensure the air conditioning in the employee break room is running full tilt. Go and test it with a thermometer.
Cool Drinking Water	Ensure cool drinkable water is available. Augment with electrolyte rich drinks like Gatorade upon request.
Swamp Cooler + Fans	Provide swamp coolers in the shop area. Ensure all employees get a blast. Humid zones may need forced draft fans…see Big Ass Fans.
Neck Gaiters	Provide neck gaiters to each employee at no cost. Cost is between $5-10 at Amazon. Show them how to use it it’s easy. Golfers, construction and highway workers have been using it for a while.
Ice Vests	Provide an option for outdoor employees to wear an ice vest. The vest is thrown in the freezer for a few hours then one round the waist like a bulletproof vest. Cost $49.99. Your staff walking outside in 100-degree heat will love you.
Employee Training	Provide training to all employees regarding the signs and symptoms of, causes, first aid, and emergency responses to various heat illnesses.
Management Guidance	Management and all employees must understand the signs and symptoms of, and first aid and emergency responses to heat illness. OSHA provides this guidance for employers knowing that an MD is generally not available on site to diagnose, treat, or respond to heat related illness.  https://www.cdc.gov/niosh/topics/heatstress/heatapp.html
Posters	Post this poster in employee breakrooms and near the receptionist.
Thermometer	Place a big thermometer (patio thermometer size) in the indoor area for all to see.

References

California Code of Regulations, Title 8, Section 3396

California Code of Regulations, Title 8, Section 3395

https://www.dir.ca.gov/dosh/HeatIllnessInfo.html

https://www.dir.ca.gov/dosh/heat-illness/indoor-faq.html

https://www.weather.gov/ama/heatindex
https://www.cdc.gov/niosh/topics/heatstress/heatapp.html for the OSHA-NIOSH Heat Safety tool for mobile phones to estimate “Feels Like” temperature