Case Name:
As You Sow v. eForCity Corporation
Court Name:
San Francisco Superior Court
Plaintiff Attorney:
Robert S. Perlmutter, Shute, Mihaly & Weinberger LLP
Defendant:
eForCity Corporation, dba Ascend Distribution
Injunctive Relief:
Defendant agrees, with respect to all Covered Products, to the following forms of injunctive relief.
2.1 Warnings: As of the Effective Date, Defendant agrees to provide Proposition 65 warnings for all Covered Products that contain DEHP. Such warnings shall be deemed to be “clear and reasonable” within the meaning of Proposition 65 and the implementing regulations that appear at Cal. Code Regs, tit. 27, § 25601, provided that the statement that appears below is printed on the packaging, for such Covered Products, or is affixed to such packaging by means of adhesive stickers on such Covered Products that identify the Covered Products to which the warnings pertain, provided that such warnings, whether they appear on packaging , shall be printed and/or affixed with such conspicuousness, as compared to other words or statements on packaging so as to render the warnings reasonably likely to be read by an ordinary individual under customary conditions of purchase or use:
For all Covered Products on or after January 1, 2013, the following warning:
WARNING: This product contains Di (2ethyexyl) phthalate (DEHP) a chemical known to the State of California to cause cancer and birth defects or other reproductive harm.
For Covered Products until December 31, 2012, the following warning:
CALIFORNIA PROPOSITION 65 WARNING: This product may contain one or more chemicals known to the State of California to cause cancer, birth defects, and/or other reproductive harm. Please wash hands after use.
2.2 Reformulation. Defendant represents that it is not a manufacturer of the Covered Products. However, Defendant agrees that all Covered Products that it imports, packages, distributes, or markets for sale or use in California on or after January 1, 2013, will be reformulated in a manner consistent with the requirements of Health and Safety Code section 108939, so as not to contain DEHP in concentrations exceeding 0.1% or 1000 parts per million. In reformulating the Products to remove DEHP, Defendant understands that DEHP may not be replaced with dibutyl phthalate (“DBP”), butyl benzyl phthalate (“BBP”), di-n-hexyl phthalate (“DnHP”), or di-isodecyl phthalate (“DIDP”) in amounts of more than 0.1%. For any Covered Products that contain DEHP in amounts equal to or less than concentrations of 0.1%, no Proposition 65 warning shall be required for DEHP.
Payment in Lieu of Penalty:
$ 20,000.00 (In lieu of additional civil penalties, Defendant shall also pay $20,000.00, with this amount to be used by As You Sow for grants to California non-profit organizations and by the AYS Environmental Enforcement Fund. These funds shall be used to reduce exposures to toxic chemicals and to increase consumer, worker, and community awareness of the health hazards posed by toxic chemicals in California. In deciding among the grantee proposals, the As You Sow Board of Directors (“Board”) takes into consideration a number of important factors, including: (1) the nexus between the harm done in the underlying case(s) and the grant program work; (2) the potential for toxics reduction, prevention, remediation, or education benefits to California citizens from the proposal; (3) the budget requirements of the proposed grantee and the alternate funding sources available to it for its project; and (4) the Board’s assessment of the grantee’s chances for success in its program work. AYS shall ensure that all funds will be disbursed and used in accordance with AYS’ mission statement, articles of incorporation, and bylaws, and applicable state and federal laws and regulations. )
