Products Liability Law Reporter

An administrative enforcement proceeding was instituted under the Consumer Product Safety Act (CPSA), 15 U.S.C. §§2064(c) and (d), seeking public notification and remedial action to protect the public from product hazards allegedly presented by various products sold on Amazon.com and distributed by Amazon.com, Inc., through its Fulfillment by Amazon program.

Consumers purchased more than 400,000 allegedly hazardous items, including children’s sleepwear that fails to meet flammability requirements, carbon monoxide detectors that fail to alarm, and hair dryers that lack electrocution protection. The complainant sought a determination that Amazon had acted as a distributor under the CPSA regarding the products sold through its Fulfillment by Amazon program and that remedies under the CPSA were necessary to protect the public. Amazon asserted that it was not a distributor subject to the requirements of federal consumer product safety law and that the Consumer Product Safety Commission (CPSC) could not order it to take action.

In its decision and order, the CPSC adopted an administrative law judge’s finding that Amazon had acted as a distributor for purposes of the CPSA when it received, stored, and delivered hazardous products sold by third-party sellers through its Fulfillment by Amazon program. The commission also accepted the parties’ stipulation that the relevant products posed substantial hazards.

The CPSC determined that Amazon must provide notice of the product hazards to purchasers and the public to adequately protect the public, and that it was in the public interest to require Amazon to take remedial action under §15(d) of the CPSA to incentivize the removal of the hazardous products from consumers’ homes. Under the decision and order, Amazon must submit proposed plans, and the commission will consider and address them in a second order in the case.

Citation: In the Matter of Amazon.com, Inc., CPSC Dkt. No. 21-2, July 29, 2024.

Government counsel: John C. Eustice and Liana G.T. Wolf, both of Bethesda, Md.

Comment: See also Fike v. Global Pharma Healthcare Private, Ltd., 2024 WL 3460114 (E.D. Pa. July 18, 2024), a lawsuit concerning EzriCare artificial tears allegedly contaminated with a virulent type of bacteria, which allegedly led to the removal of one of Donna Fike’s eyes. Fike sued Global Pharma Healthcare Private, Ltd.; EzriCare, LLC; EzriRx, LLC; and Amazon.com, Inc., alleging strict products liability, failure to warn, negligence, misrepresentation, breach of express warranty, breach of implied warranty of merchantability, emotional distress, and consumer protection violations. The plaintiff sought punitive damages. Amazon moved to dismiss. The district court granted in part and denied in part. The court noted, in part, that duty is necessary for any action for reckless or negligent misrepresentation. Courts consider various factors, including the relationship between the parties, the social utility of the actor’s conduct, the nature of the risk imposed and foreseeability of the harm incurred, the consequences of imposing a duty, and the public interest. The court found that Fike’s interactions with Amazon were nothing more than arm’s length business deals and that the shipping of goods is an important part of any economy. The court also said that Amazon’s services provide products to large numbers of people worldwide and that there was little foreseeability of harm here. Requiring Amazon to investigate every single product would be an incredible burden and decrease the company’s ability to participate in the global marketplace, the court found.