Checking-in? New Proposition 65 Exposure Warnings for Hotels and Lodging Establishments Take Effect August 30, 2018

by Downey Brand LLP
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On August 30, 2018, the new Proposition 65 warning regulations go into effect, including new exposure warning requirements for hotels and other lodging establishments.  California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986—or “Prop. 65”—prohibits businesses from releasing chemicals “known to the state to cause cancer or reproductive toxicity,” and from exposing people to chemicals on the Prop. 65 List without providing “clear and reasonable” warnings.

As we previously reported, the new Prop. 65 warning requirements significantly change what constitutes a “clear and reasonable warning” under Prop. 65, and may open the door for more rampant lawsuit abuse by citizen groups looking to enforce Prop. 65’s revised terms against businesses.  The new regulations adopted by California’s Office of Environmental Health Hazard Assessment (OEHHA) that specify the Prop. 65 warnings that must be given by hotels and other lodging establishments will only add to that abuse.

Under the new regulations, “hotel” is broadly defined to include “any type of transient lodging establishment, including but not limited to, hotels, motels, bed and breakfast inns, resorts, spas, ski resorts, guest ranches, agricultural ‘homestays’, tourist homes, condominiums, timeshares, vacation home rentals, and extended stay establishments in which members of the public can obtain transient lodging accommodations.”  (27 CCR § 25607.32(a).)  The new Prop. 65 warnings must be provided on a sign posted at the hotel’s registration desk in no smaller than 22-point type in a location where it “will be likely to be seen, read, and understood prior to completion of the registration or check-in process” or to the hotel guest in electronic or hard copy form.  (See 27 CCR § 25607.32(b).) 

If written or electronic consumer information is given to hotel guests during the registration or check-in process in any language other than English, the warning must also be provided in both English and that other language.  (27 CCR § 25607.32(c).)  Finally, in addition to the requirements set forth above, hotels must provide separate Prop. 65 warnings where applicable for designated smoking areas, alcoholic beverages, food, enclosed parking facilities and consumer products where such products are offered for sale at the facility.  (27 CCR § 25607.32(d).)

Owners and operators of all of the lodging establishments included in the definition of the term hotel should determine whether their properties can expose guests or the public to chemicals on the Prop. 65 List.  If so, those lodging establishments will likely need to provide a warning.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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