California Court Rules Amazon Must Protect Consumers

The California Court of Appeals Friday ruled Amazon, the world's largest store, must comply with consumer protection laws including warning California consumers when products sold on its marketplace contain chemicals listed by California as carcinogens or reproductive toxicants. As You Sow and other consumer advocates applauded the decision in a case involving skin lightening creams containing extremely toxic and illegal levels of mercury.

This ruling deals a major blow to Amazon, which has tried mightily and with some success to evade liability across the country for harm caused by products sold on its marketplace. (Read these two news stories -- Wall Street Journal, CNN -- on Amazon and the health impacts of skin lightening creams).

"Our position has always been that Amazon's online shelves must be subject to the same consumer protection laws as other businesses, full stop. Big is not an excuse to harm, and virtual shouldn't mean lawless. Amazon has the resources to comply with the law and it must do so," said Danielle Fugere, president and chief counsel at As You Sow. "Amazon is in a far better position than individual shoppers to ensure that the products it sells meet health and safety standards."

Amazon was sued in 2014 by Larry Lee, and again in 2018 by As You Sow, under the Toxic Enforcement Act, sometimes called Proposition 65, for exposing consumers to skin lightening creams which are illegal under state and federal law due to their dangerously high mercury content. Testing showed that Amazon allowed sales of more than a dozen brands of skin-whitening creams that contain mercury, at thousands of times the legal limit set by the U.S. Food and Drug Administration. The lawsuits against Amazon allege Amazon knowingly exposed consumers to mercury by allowing the mercury-laden, skin lightening creams to be sold through its website without providing the legally required warnings to shoppers.

Amazon's primary defense was that it does not have an obligation to comply with the Act because health and safety compliance should be handled entirely by the third-party vendors on its online store -- no matter how small and no matter whether they are familiar with U.S. laws -- even if Amazon knows the products are dangerous. Amazon also argued that because it is an online platform, it should bear no responsibility for any harm to consumers from the dangerously high mercury products sold on its virtual shelves.

Lead counsel Rachel Doughty of Greenfire Law, PC, points to another recent ruling involving the sale of defective products on Amazon -- Bolger v. Amazon.com.

"This case represents a continuation of the sea change we are seeing in the law to finally reflect the reality of online marketplaces -- both legislatively and in interpreting existing laws," Doughty said. "The court looked at what voters intended when they adopted the Toxic Enforcement Act and determined it was that California consumers be warned of reproductive and cancer health risks prior to exposure, and found no basis to give Amazon a pass."

This decision is a major win for public health and the consumer advocates who have been working to ensure that products are safe for consumers.

"Our most recent testing report confirms that Amazon continues to flaunt the law by selling often illegal and dangerously high mercury skin lighteners around the world," said Michael Bender, director of the Mercury Policy Project, who along with Black Women for Wellness submitted an Amicus Brief in support of the lawsuit filed by Lee.

"As the Court of Appeal for the State of California First Appellate District shows, Amazon violated the Toxic Enforcement Act when, despite knowing that the skin-lightening creams at issue contained mercury, it took concrete actions to sell those products and ultimately exposed its shoppers to mercury without warning," Bender added.

The plaintiff was represented by Greenfire Law, PC and the Law Office of Jonathan Weissglass. The California Attorney General's Office, As You Sow, Black Women for Wellness, and Mercury Policy Project filed amicus briefs in the case.

Additional quotes on the court ruling:

Plaintiff Larry Lee said:

"I'm happy that Amazon shoppers will be informed of the risk of these dangerous products and avoid buying them and bringing them into their homes if they want to."

Dr. Astrid Williams, environmental justice program manager for Black Women for Wellness, which filed an amicus brief in the case, said:

"This is great news for communities of color, particularly Black women who use these skin lightening products. Black women carry a higher load due to toxins and environmental exposures and are often under-protected. We look forward to greater monitoring and regulation of beauty aids and personal care products."

Danielle Fugere, chief counsel at As You Sow, the plaintiff in a related 2018 mercury in skin lightening cream case against Amazon, said:

"Amazon, one of the world's largest companies, argued that it was not 'acting in the course of doing business' and should not be held responsible for the sale of these extremely toxic skin lightening creams on its website marketplace. California's Toxic Enforcement Act requires anyone acting in the course of doing business to warn Californians before they are exposed to carcinogens and reproductive toxins. Our position has always been that there is no exception for Amazon. The California Court of Appeals soundly confirmed our position on Friday."