As You Sow v. The Dexter Corporation, et al.

Proposition 65 Private enforcer and whistleblower, As You Sow, and materials manufacturer, The Dexter Corporation ("Dexter"), entered a settlement agreement on April 20, 1995, that resolves AYS' claims that Dexter violated Proposition 65 when it failed to warn consumers and other individuals of the health hazards associated with exposures to toluene, methylene chloride, lead, benzene, perchloroethylene, chromium (hexavalent compounds) and diisocyanate in certain paints, coatings, adhesives, and other products sold in California. Toluene is listed pursuant to Proposition 65 as a chemical that is known to the state to cause reproductive harm or birth defects. AYS commenced the private enforcement action with a 60-day notice of violation of Proposition 65 to Dexter served on December 9, 1994, and a subsequent notice of violation served on March 16, 1995. On April 18, 1995, after no public enforcer elected to prosecute the violations alleged in its December notice, AYS filed As You Sow v. The Dexter Corporation, et al., San Francisco Superior Court Case No. 968856, naming Dexter as a defendant for alleged violations of Proposition 65.

Under the terms of the settlement, Dexter provided specific health hazard warnings regarding the types of harm associated with an exposure to the particular listed chemical in a given product. The agreement required Dexter to revise the MSDS, included with the products identified by AYS and covered by the settlement, to include the same specific warning language required of its labels. It also provided California customers, that held inventory of products shipped prior to the settlement, with health hazard warning stickers to be applied prior to sale. In addition, the agreement required settlement payments totaling $117,500, including a $10,000 payment in lieu of civil penalties to AYS to be paid to San Francisco Baykeeper, a nonprofit investigating discharge violations in the San Francisco Bay, and $82,500 in civil penalties. The civil penalty payments were divided between the California Office of Health Hazard Assessment (75%) and AYS (25%), and include a guaranteed penalty payment of $7,500 and a second penalty payment of $75,000. Under the settlement, AYS agreed to waive the second penalty payment provided Dexter certified in writing that it committed $75,000 of its budget over a two-year period on research and development into offering products that do not contain Proposition 65-listed chemicals. For the reasonable fees and costs incurred by AYS investigating, litigating, and negotiating a settlement of the private enforcement action in the public interest Dexter paid the private enforcer $25,000. On April 20, 1995, the parties submitted the settlement to the court, which was approved and entered thereafter.