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.