As You Sow v. Orly International, Inc., et al.

Proposition 65 private enforcer and whistleblower As You Sow entered into a settlement agreement with nail polish and enamel manufacturer and distributor American International Industries Group ("AIIG") on October 2, 1993. The settlement, which the parties submitted to the San Francisco Superior Court for approval and entry as a judgment, resolved AYS's allegations that AIIG violated Proposition 65 when it failed to warn consumers in California of the health hazard risks associated with exposures to toluene in its nail polish and nail enamel products. Toluene is listed pursuant to Proposition 65 as a chemical that is known to cause birth defects or other reproductive harm. After more than sixty days passed with no public enforcer having elected to enforce the violations alleged in the 60-Day Notice of Violation issued by AYS on February 3, 1993, AYS named AIIG as a defendant in As You Sow v. Orly International, Inc., et al. San Francisco Superior Court Case No. CGC-93-950767, a formal enforcement action brought to enforce the violations alleged in 60-Day Notices of Violation of Proposition 65 that AYS served on a number of nail polish and enamel distributors and manufacturers.

The settlement required AIIG to reformulate more than fifty products identified by AYS to eliminate the toluene in those products. AIIG agreed to complete reformulation for a portion of the products by October 1, 1993, and for all of the products by December 15, 1993. In exchange for AIIG's agreement to offer toluene-free, reformulated products, AYS agreed to forego the imposition of civil penalties, but a failure to complete reformulation of the products to be toluene-free in the time required by the agreement would subject AIIG to a $10,000 liquidated penalty payment. AIIG was required to reimburse AYS $11,750 for a portion of the attorneys' fees and cost incurred in bringing the private enforcement action and resolving the matter in the public interest.