As You Sow v. E/M Corporation, et al.

In a settlement entered by the Marin County Superior Court as a judgment on May 22, 1995 (Case No. 162692), Proposition 65 private enforcer and whistleblower, As You Sow, and manufacturer of paints and solvents, E/M Corporation, resolved AYS's claims regarding alleged violations of Proposition 65 by EMC. The complaint filed by AYS alleges that EMC violated Proposition 65 when it sold paints and solvents containing the Proposition 65-listed chemicals without warning individuals in California of the risks of cancer, or reproductive harm or birth defects associated with exposures to the listed chemicals. Toluene is listed pursuant to Proposition 65 as a chemical known to cause birth defects or other reproductive harm. Lead and methylene chloride are each listed under Proposition 65 as chemicals that are known to cause cancer.

The terms of the parties' settlement required EMC to immediately implement and provide specific health hazard warning labels regarding the type of harm associated with exposures to the particular Proposition-65 listed chemicals in its products. In addition, EMC revised the MSDS included with its paint and paint products to contain the health hazard warning information required by AYS for product labels. The settlement also required EMC to provide customers and distributors in California with the health hazard warnings for products remaining in inventory, shipped prior to the settlement, and ask that they apply them to the products prior to shipment or sale in California. AYS also obtained a commitment from EMC that it will use its best efforts to research and develop manufacturing methods to offer reformulated products that are free of Proposition-65 listed chemicals.

Settlement payments required by the agreement total $17,500, including a $15,000 restitution payment to AYS to be allocated between the BAN Waste Coalition and AYS's Proposition 65 Investigation and Enforcement Fund. EMC also made a $2,500 civil penalty payment under the settlement to be divided between the California Office of Environmental Health Hazard Assessment (75%) and AYS (25%). A cost component of the restitution payment went to defray AYS's attorneys' fees and costs incurred investigating, litigating, and negotiating a settlement of the private enforcement action in the public interest.