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Proposition 65 and the Hospitality Industry

January 15, 2019

Amendments to California’s Proposition 65 have imposed specific warning requirements on hospitality businesses.  A failure to comply with these requirements can result in investigations by the Attorney General, or private law firms, and large civil penalties. 

What is Proposition 65?

California’s Proposition 65 – the “Safe Drinking Water and Toxic Enforcement Act of 1986” – requires that prior to entering into an area where exposure to any of the roughly 900 chemicals or toxicants specified by the State can occur, a person must be warned about possible exposure. A failure to comply with the warning requirements can subject the offending company to a civil penalty of up to $2,500 per violation, per day.

Proposition 65 is a private attorney general statute, and in addition to claims brought by the Attorney General, there are law firms whose sole focus is bringing claims and seeking penalties (on behalf of the State) and attorney fees (on their own behalf). 

What is the impact on the Hospitality Industry?

While the analysis of Proposition 65 typically focuses on products, location based warnings are an equally important part of the Regulations.  This is especially true following the amendments that went into effect in August 2018.

The August amendments impose a new set of requirements on the hospitality industry. Hotels (which include hotels, timeshares, vacation home rentals, etc.) and restaurants are particularly impacted by the implementation of new “location specific” requirements.  These businesses must use new, and different, warning language, rather than the general environmental warning that had been used previously.  The amendments also impose requirements on exactly how these warnings are provided to customers (where they are posted, in what size font, etc.).  

Further, because of the nature of these businesses, more than one warning is typically required.  For example, a hotel may need to provide both the hotel warning and the “designated smoking area” warning and/or the “enclosed parking” warning. 

The recent changes mean that even businesses which have been posting Proposition 65 warnings may now be in violation of Proposition 65’s requirements. 

What you can do?

If you own or manage a business in California, you should be aware of Proposition 65, its applications and requirements as well as the recent amendments. This should include a review an existing compliance program and the implementation of a new compliance program. 

Clark Hill PLC has a team of lawyers experienced in Proposition 65.  If you have questions or need assistance with any Proposition 65 matter, please contact Michael Sachs or any member of Clark Hill’s Proposition 65 team.

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