As You Sow v. Pervo Paint Company, et al.

In a stipulated judgment entered by the Contra Costa County Superior Court (Case No. C 94-04806) on May 15, 1995, Proposition 65 private enforcer and whistleblower, As You Sow, and paint and traffic paint manufacturer, Pervo Paint Company ("Pervo"), agreed to terms resolving AYS' August 25, 1994, 60-day notice of violation of Proposition 65 served on Pervo. The settlement resolved AYS' claims alleged in the notice and the private enforcement commenced by AYS on November 1, 1994. The 60-day notice and complaint alleged that the paint manufacturer violated Proposition 65 by failing to warn the public in California of the harms associated with exposures to the Proposition 65 listed chemicals, lead, a chemical that is known to cause cancer, and toluene, a chemical known to cause reproductive harm or birth defects. The settlement covered more than 50 paints and traffic paints sold by Pervo and identified by AYS.

Under the agreement, Pervo immediately provided specific health hazard warnings regarding the risk of cancer and/or reproductive toxicity related to exposures to the Proposition 65-listed chemicals in its products, and committed to label all products sold or distributed for sale in California by September 1, 1995. In addition, the settlement required Pervo to revise the MSDS included with its products to include the health hazard warning language required for the labels by March 15, 1995. To protect consumers from unwarned exposures by products already in commerce, Pervo also provided its customers who sell or distribute for sale in California with stickers bearing the health hazard warning required by the settlement to be applied to any products in inventory that did not bear a health hazard warning.

The settlement monetary terms included payments by Pervo totaling $22,000, including a $17,000 payment to AYS in lieu of civil penalties that AYS divided between the West County Toxics Coalition, the Rose Foundation, and AYS' own Proposition 65 enforcement fund, a portion of which was used to reimburse the nonprofit whistleblower for the legal fees and costs incurred investigating, litigating, and negotiating a settlement of the private Proposition 65 enforcement action in the public interest. Under the agreement, Pervo was also required pay $5,000 in civil penalties to be allocated between the California Office of Environmental Health Hazard Assessment (75%), and the private enforcer, AYS (25%).