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Amazon Must Give Proposition 65 Warnings, C.A. Holds
First District Says ‘Constructive Knowledge’ of Dangers Triggers Duty
By a MetNews Staff Writer
Amazon.com faces potential liability if it fails to post Proposition 65 warnings in connection with products its offers for sale even if it has only constructive knowledge that they contain ingredients that cause cancer or reproductive harm, the Court of Appeal has held, declaring that the online retailer is not exempted by federal law.
Sec. 230 of the Communications Decency Act (“CDA”), which provides immunity to website platforms with respect to third-party content, does not protect Amazon, the First District’s Div. Two said in an opinion filed Friday. Sitting on assignment, J. Anthony Kline, the division’s former presiding justice, now retired, explained:
“Proposition 65’s warning requirement is an exercise of state authority to protect the public that imposes obligations on any individual who exposes another to a listed chemical. Proposition 65 is not inconsistent with the CDA because imposing liability on Amazon for failing to comply with its own, independent obligations under Proposition 65, does not require treating Amazon as the publisher or speaker of third-party sellers’ content.”
Proposition 65—the Safe Drinking Water and Toxic Enforcement Act of 1986—provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual,” except as set forth in a specified section.
Fourth District Decision
Amazon relied upon the 2002 Court of Appeal decision by the Fourth District’s Div. One in Gentry v. eBay, Inc. which held that eBay could not be held liable to the purchaser of autographs that, it was found out, were forgeries. It said:
“We are constrained from enforcing such liability under California law because it would treat eBay as the publisher or speaker of the individual defendants’ materials, and thereby conflict with section 230.”
Kline did not perceive Gentry as being applicable. He wrote:
“Lee does not suggest Amazon had any obligation to alter the content of the product descriptions provided by the third-party sellers or even to remove the listings altogether. Instead, Lee maintains Amazon should have added its own Proposition 65 warning, pursuant to its independent obligation under Proposition 65, based on its conduct in providing a mercury-containing product to consumers….Lee’s claims are based on Amazon’s conduct in exposing consumers to mercury-containing products without providing Proposition 65 warnings, not its failure to monitor, modify or remove third parties’ listings for the products, and thus do not require treating Amazon as speaker or publisher of third-party content.”
The action was brought by Larry Lee who contended that Amazon failed to warn of the dangers of certain skin-lightening creams which, he alleged, contain mercury, which the state has determined to be carcinogenic. Alameda Superior Court Judge Robert McGuiness, after a bench trial, granted judgment in favor of Amazon, finding that the CDA applies.
Knowledge of Properties
He also concluded that Lee failed to show that Amazon had actual knowledge of the carcinogenic propensities of the products.
Actual knowledge, Kline wrote, is not required. He said the public policy underlying the initiative “militates in favor of an interpretation of the ‘knowingly and intentionally’ requirement” of Proposition 65 as including constructive knowledge.”
The retired jurist reasoned that interpreting the requirement of a warning as applying only where there is actual knowledge of a danger “would significantly limit the reach of the statute and create incentives to avoid information that might reveal potential sources of exposure.”
He elaborated:
“[L]imiting the obligation to provide warnings to actual knowledge would create incentives for businesses to avoid information that might alert them to the presence of hazardous chemicals and potential for exposures. This result would be inimical to the protective purpose of the law generally, and specifically to the voters’ stated purposes of furthering the dissemination of information about exposures to toxic chemicals, strict enforcement of laws controlling hazardous chemicals and deterrence of actions that threaten public health and safety.”
Kline went on to remark:
“There is nothing rationally or logically inconsistent with a requirement that a business provide warnings—or be liable for failure to do so—if it knows or has sufficient reason to know it is exposing ‘any individual’ to a listed toxic chemical.”
If the skin-lightening creams were sold in a store, he said, the proprietor would be obliged to provide a Proposition 65, commenting:
“Nothing in the text or purposes of the CDA suggests it should be interpreted to insulate Amazon from responsibilities under Proposition 65 that would apply to a brick-and-mortar purveyor of the same product.”
There was a remand for further proceedings.
The case is Lee v. Amazon.com, 2022 S.O.S. 1112.
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