As You Sow v. Noxell Corporation, et al.

Proposition 65 private enforcer and whistleblower, As You Sow, and the Cosmetic, Toiletry and Fragrance Association ("CTFA") reached a settlement on August 20, 1993, that resolved AYS's allegations that thirteen national cosmetic manufacturers violated Proposition 65 by failing to warn consumers and other individuals in the state of California that the nail enamels and nail care products sold by the cosmetic manufacturers contain and expose individuals to toluene. Toluene is listed pursuant to Proposition 65 as a chemical known to cause reproductive harm or birth defects. The private enforcement action commenced on November 18, 1992, when the nonprofit whistleblower began serving a series of 60-Day Notices of Violation on the CTFA defendants and other similarly situated industry members. AYS served seven CTFA industry members, Cosmair/Lancome, Del Laboratories/Sally Hansen, The Princess Marcella Borghese, Clarins U.S.A., Amway Corporation, Mavala S.A., and Johnson Products Company, with a 60-Day Notice of Violation of Proposition 65 and named them as defendants in the action. On April 5, 1993, AYS filed As You Sow v. Noxell Corporation, et al., Case, No. 950766 in the San Francisco Superior Court. Following the parties' agreement, six additional CTFA member companies, Avon Products, Chanel, Orlane, Mary Kay Cosmetics, Merle Norman, and Tristar d/b/a Apple Cosmetics, elected to agree to the terms and participate in the settlement as opt-in defendants prior to submission to the court for approval and an entry of judgment.

Under the settlement, all of the CTFA defendants agreed to reformulate their products and provide only toluene-free nail polishes and enamels by March 1, 1994, and to provide specific health hazard warnings requested by AYS in the interim. In exchange for committing to go beyond the statutory warning requirements of Proposition 65 and undertaking to reformulate the products and remove all toluene from the products entirely, AYS agreed to forego the imposition of otherwise-available civil penalties as to the CTFA industry defendants. The seven named defendants agreed to reimburse AYS $255,000 for the reasonable attorneys' fees and investigation costs incurred bringing the private enforcement action and negotiating a settlement in the public interest. Each of the six opt-in defendants agreed to payments of $15,000 or $30,000, the final amount being based on whether a particular settling defendants' percentage share of the California market exceeded one percent. Following the court's approval of the settlement terms, AYS entered agreements with ten additional CTFA members, Bari Cosmetics, Blue Cross Beauty Products, Borden, Inc., Cabot Labs, Guerlain, Jafra, Lancaster, Parfums Givenchy, and Mearl Corp., each agreeing to pay $15,000, and Sanofi, agreeing to pay $30,000 toward the settlement.