The Cosmetic Toiletry, and Fragrance Association (CTFA) filed a lawsuit against an environmental consumer group called As You Sow (AYS) in early April, asking a California court to determine that nail polish does not contain enough toluene to require a warning label under California law.

CTFA, a trade association that represents approximately 240 companies that manufacture or distribute personal care products, filed suit against AYS in response to AYS three lawsuits against more than 40 nail polish marketers. AYS contends that the companies are in violation of California’s Proposition 65, which requires manufacturers to use consumer warnings if a chemical suspected of causing birth defects of cancer exceeds the safety level set by the state. Toluene, a nail polish solvent, is on the state’s list of hazardous chemicals because studies have shown that it may cause birth defects at high exposure levels.

According to Jim Mattesich, CTFA’s layer, two studies conducted for CTFA by independent laboratories in 1991 and 1993 show that the levels of toluene in nail polish fall well below the exposure level set by California.

Says CTFA president Ed Kavanaugh, “Proposition 65, approved by voters in 1986, was intended to warn consumers of real and significant risks. AYS is fully aware that scientific studies have shown that any exposure resulting from normal use of nail enamel with toluene is well below the exposure level that would trigger a warning requirement under Proposition 65.

AYS lawyer, Clifford Chanler of Chanler and Associates in San Francisco, Calif., says tests conducted by independent laboratories for AYS show that nail enamel contains a level of toluene that exceeds the state’s limit. Chanler says AYS is not aware of any women claiming that toluene in nail polish has harmed them, nor is the group contending that nail polish causes birth defects.

Says Chanler, “We’re not saying [nail polish] is dangerous, just that pregnant woman have a right to know that it contains a chemical known to cause birth defects.” He argues that if one exposure to toluene at the wrong time in a pregnancy could cause a birth defect, then a pregnant woman deserves to be warned of that possibility.

Toluene has been shown to cause birth defects in children whose mother was exposed to high levels of toluene during her pregnancy, such as by sniffing toluene for a narcotie “high,” but no studies have been done showing that an exposure at the “wrong time” would cause birth defects. No studies of nail technicians working in salons have been conducted to determine the effects of low-level, long-term exposure to toluene in nail polish.

It is known that toluene does not build up in your body, so daily exposure to it is no more dangerous than any single exposure. A nail technician can work with toluene without any ill effects as long as she is not overexposed any one time.

It is not up to the court to decide whether toluene in nail polish requires a warning label. Because the law in question says that products containing toluene must bear warning labels, the manufacturers must prove that the level of toluene is lower than the level the state says requires a warning. If CTFA can’t prove that to the court’s satisfaction, nail polish marketers have three options: remove toluene from nail polish, restrict polish sales to outside California, or provide a warning on the product label. If they lose, the companies named in the lawsuit could be fined as much as $2,500 per day, per item, from the time they were named as defendants in the lawsuit.

CTFA’s lawsuit not only asks the court to find that toluene in nail polish does not requires a warning under Proposition 65, but it also asks the court to ratify Proposition 65’s language to make it clear that the measure was designed to require warnings, only if justified, based on the exposure to average users.

Of the more than 40 manufacturers named in AYS’ suits. Chanler says five companies have settled with AYS out of court, agreeing to remove their product from the California market, remove toluene from their formulation, or post warning labels. Another dozen companies are negotiating settlements with AYS, says Chanler.

NAILS spoke with representatives of two of the companies that settled out of court and was told that their decision to settle was based on economics, not agreement with AYS’ charges – their companies were not large enough to afford lawyers’ fees and potential fines in the event AYS prevailed. Says one manufacturer, “We do stand with the nail industry to prove that [nail polish] is safe, but until it is found conclusively that the levels of toluene don’t pose a hazard, we are in violation of California law.”

Mattesich says that CTFA’s actions have the support of its members, including companies not named in the lawsuit. CTFA has also garnered the support of the American Beauty Association and the Nail Manufacturers Council. Mattesich says he is confident that CTFA’s studies are sufficient evidence that warning labels are not required.

Editor’s note: As of NAILS’ press time, no court date had been set.