As You Sow v. Noxell Corporation, et al.

On August 31, 1993, Proposition 65 private enforcer and whistleblower As You Sow and cosmetics manufacturers Max Factor & Company and Noxell Corporation entered an agreement resolving contentious litigation between the two parties. AYS commenced the private enforcement action on November 18, 1992, when it began issuing 60-Day Notices of Violation of Proposition 65 to cosmetic industry members, alleging that they violated the Act when they failed to warn consumers and other individuals of the health hazard risks associated with exposures to toluene found in nail enamel and nail care products. Max Factor and Noxell each received notices of violation from AYS. After no public enforcer elected to prosecute the violations alleged in the notices, AYS filed a private enforcement action, As You Sow v. Noxell Corporation, et al., Case No. CGC-93-950766, in the San Francisco Superior Court, naming Noxell, Max Factor and other similarly-situated cosmetic companies in receipt of AYS-issued 60-Day Notices of Violation as defendants for alleged unwarned exposures to toluene from nail enamel and nail care products. Toluene is listed pursuant to Proposition 65 as a chemical that is known to cause reproductive harm or birth defects.

In negotiating the settlement, AYS attorneys' obtained a commitment from Noxell and Max Factor to reformulate all of the manufacturers' nail enamel and nail care products sold in California by April 30, 1994. In exchange for Noxell's and Max Factor's commitment to only offer toluene-free products going forward, AYS agreed to forego the imposition of otherwise-available civil penalties. The settlement also provided for the defendants' payment of $37,500 to AYS to reimburse a portion of the attorneys' fees and costs incurred investigating, bringing the matter to Noxell's and Max Factor's attention, litigating, and negotiating a settlement of the matter in the public interest.