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Courts grapple with Amazon's responsibility for dangerous products

Cat Ferguson, The Mercury News on

Published in Science & Technology News

Neither Amazon nor Oberdorf was able to find anyone connected with The Furry Gang, the Amazon store that sold the leash. An Amazon spokesperson declined to comment about the case.

Amazon's Teflon coating in marketplace sales cases has been a thorn in the side of many groups seeking more corporate responsibility.

"We're trying to get Amazon to work like a bartender," who can be held responsible for over-serving people who later drive drunk, said Scott Steinford, CEO of Trust Transparency Center, a market research and consulting firm for the dietary supplement industry, which has conducted several investigations into products sold on Amazon.

A few weeks ago, a judge in Alameda County Superior Court ruled that As You Sow, an activist group that pushes for corporate social responsibility, couldn't sue Amazon over skin whitening creams containing high levels of mercury being sold on the platform without the warnings about cancer risk required by California law. One cream sold through Amazon contained 38,000 times the level of mercury allowed by the FDA, according to As You Sow's complaint.

The judge in that case agreed with Amazon that the federal Communications Decency Act, designed to protect online platforms from defamation claims based on internet comments and blog posts, meant Amazon was not responsible for warning labels. Last week's decision in Pennsylvania agreed with that understanding of the law but argued the company can still be held liable for damages caused by defective products.

While the Pennsylvania ruling is based on state laws, many other states, including California, use the same basic legal theory when deciding who counts as a seller, meaning the decision could have ramifications throughout the country.

"We need to decide, is this a store? I think the answer has to be yes. Amazon is our new store," said Danielle Fugere, president and general counsel of As You Sow. "We need laws that require a company like Amazon to undergo due diligence like a brick-and-mortar store would."

These questions will only become more important as more retailers, including Target, open their websites to third-party sellers.

 

"They take the position that it's the customer's responsibility to do due diligence on products in the marketplace. But if there's a problem with a product, it only comes out when it's used," Steinford said. "It may take a large number of bad reviews for it to be clear that a product is unsafe."

Amazon must now decide whether to appeal the Pennsylvania case. The court ruled 2-1 in favor of Oberdorf.

"We do not believe that Pennsylvania law shields a company from strict liability simply because it adheres to a business model that fails to prioritize consumer safety," Judge Roth wrote in the decision. "The dissent's reasoning would give an incentive to companies to design business models, like that of Amazon, that do nothing to protect consumers from defective products."

(c)2019 The Mercury News (San Jose, Calif.)

Visit The Mercury News (San Jose, Calif.) at www.mercurynews.com

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