As You Sow v. Miss Marion Cosmetics, Inc., et al.

The Honorable Ollie Marie-Victoire, Judge of San Francisco Superior Court, entered a Judgment on August 13, 1993, according to the terms of the settlement reached between Proposition 65 private enforcer and whistleblower, As You Sow, and manufacturer of nail enamel and nail care products, Miss Marion Cosmetics, Inc. ("MMC"). The settlement resolved a private Proposition 65 enforcement action between the two parties. On March 4, 1993, AYS served MMC with a 60-Day Notice of Violation that alleged that MMC violated Proposition 65 when it sold nail enamel products containing toluene in California without providing consumers and users of the products with a health hazard warning. Toluene is listed pursuant to Proposition 65 as a chemical that is known to cause reproductive harm or birth defects. When no public enforcement agency elected to enforce the violations alleged in AYS's notice, it filed As You Sow v. Orly International, Inc., et al., Case No. CGC-93-950767, naming MMC and other similarly situated cosmetic and nail product manufacturers as defendants for alleged unwarned exposures to toluene.

The parties' settlement and the judgment of the court required MMC to only offer toluene-free, reformulated nail products by December 15, 1993. In the interim, MMC provided specific health hazard warnings requested by attorneys for AYS regarding the reproductive toxicity of toluene exposures. Failure to accomplish complete reformulation of the products in the time required by the agreement would subject MMC to a $5,000 liquidated penalties payment. However, AYS agreed to forego the imposition of otherwise-available civil penalties in exchange for the cosmetic manufacturer's commitment to only offer toluene-free products. The settlement also required MMC to reimburse AYS $7,000 for the investigation and attorneys' fees incurred in investigating and negotiating a settlement of the public enforcement action in the public interest.