This article is a follow-up to an article discussing the future enactment of warning regulations for rental vehicles pursuant to California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as “Proposition 65.” Since that article, the proposed regulations for rental vehicles have gone into effect and regulators have issued their “Final Statement of Reasons” explaining the purpose and intent of the regulations.
What is Proposition 65?
Proposition 65 requires that prior to exposing a person in California to one of nearly 1,000 listed chemicals that are “known to the State of California to cause cancer” or “reproductive harm” that a “clear and reasonable” warning be provided. Dealers are likely familiar with this law because it requires the placement of signs in garages and on vehicles being offered for sale, as well as rental vehicles. The new regulations for rental vehicles provide specific language and methods of transmission that are deemed to be sufficient to satisfy the warning. These warnings are often referred to as “safe harbor” warnings because they provide protection from the “storm” of an enforcement action. The California Office of Environmental Health Hazard Assessment is the lead agency that issues the enacting regulations for Proposition 65, including those setting forth the safe harbor warning language.
Why should it matter to you?
Getting this right is a worthwhile endeavor, as Proposition 65 allows private enforcers to file suit and collect civil penalties. Those penalties can range as high as $2,500 per violation, per day. What’s worse, and the likely reason there is so much litigation in this area, is California law provides for the recovery of attorney’s fees by an enforcer’s attorney. In virtually all instances where litigation is filed, the attorney fee award ends up dwarfing the amount in penalties that is paid.
The purpose of the new regulations
What the regulators are trying to accomplish with these new warning regulations for rental vehicles is provide a way for a warning to be conveyed without communicating to all that see the vehicle that it is a rental vehicle. The safe harbor warning that applies to vehicles generally, and will continue as the safe harbor language and method of transmission to be used for vehicles offered for sale, most often results in a warning on the driver’s side window as in the below image.
It is pretty clear that the warning is conspicuous. Apparently, the presence of those stickers on rental cars has become a homing beacon for would be thieves. In the Final Statement of Reasons, where the regulators explain why the new regulations are being enacted, they note that purchasers of vehicles typically take the warning stickers off. However, “[t]hese stickers usually remain on rental vehicles and can inadvertently call the attention of would-be burglars who may be targeting rental vehicles because of a higher likelihood of valuables being in the vehicle.” The warning language and method of transmission that is used for vehicles offered for sale can still be used for rental vehicles, but the new regulations do provide a more desirable alternative with additional methods to communicate a shorter warning.
What the new regulations require
The “safe harbor” warning language that is deemed to comply for rental vehicles is set forth at California Code of Regulations Title 27, § 25607.37 and is as follows:
WARNING: Operating a motor vehicle can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, 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, and assure adequate ventilation inside the car. For more information go to www.P65Warnings.ca.gov/passenger-vehicle.
The warning for rental vehicles must be printed in a size no smaller than the largest type used for consumer information, and in no event smaller than 6 point font. (consumer information is not a defined term in the regulations, but in practice it is generally deemed to exclude the large type of the product name on a consumer product.)
Alongside, and no smaller than the word “warning” (which must be in all caps and bolded as it appears above) the following icon must be displayed:
If the icon is printed on a label or sign that does not use colored ink, then it may be printed in black and white. An example of such a black and white symbol appears on the window of the vehicle in the picture above.
The Safe Harbor warning language can be conveyed to the person by providing it:
- in the rental agreement or on the rental ticket jacket;
- on a hang tag which is hung from the rear view mirror in the rental vehicle;
- by way of a clearly marked hyperlink using the word “WARNING” on the on-line reservation page, or by otherwise prominently displaying the warning to the renter prior to completing the on-line reservation;
- in an electronic rental contract; or
- in a confirmation email that is sent to the renter’s email address.
The warning language can also be conveyed per the regulation by way of signage, but that results in additional requirements with respect to the font. The requirements for signage is that it be “in no smaller than 22-point type size, that is posted at the counter or similar area of the rental facility where rental transactions occur, where it will be likely to be seen, read, and understood by the renter during the process of renting the vehicle.”
Placing the warning online, in an email, making it part of the rental agreement, or using signage at the rental counter has the added benefit of eliminating the risk that the warning will be removed while the vehicle is out, and a subsequent renter will not receive the warning.
This is not the first Proposition 65 warning regulation to impact dealerships, and it will certainly not be the last. At least this is a step in the right direction, providing easier and more varied methods of transmission, and shorter warning language than before.