July 15, 2021
On July 14, 2021, the Consumer Product Safety Commission (CPSC) filed a first-of-its-kind administrative enforcement complaint against Amazon demanding that Amazon take action over several hazardous products sold through Amazon’s Fulfilled by Amazon (FBA) process. The products include certain children’s sleepwear, carbon monoxide detectors, and hair dryers. A complete list of the products can be found in the complaint linked here. The CPSC alleges the sleepwear doesn’t meet flammability standards, the hair dryers lack the mandated electric shock protection, and the carbon monoxide detectors don’t work.
The complaint, which was filed after several months of failed negotiations between Amazon and the CPSC, commands Amazon to cease selling the products, notify consumers of the possible risks, make a full refund available, and provide ongoing proof of compliance to the CPSC. It also seeks a determination that Amazon is a “distributor” of the faulty products under the Consumer Product Safety Act, 15 U.S.C. §§ 2064(c) and (d).
The CPSC’s factual allegations appear to be modeled after Casey Gerry’s victory in Bolger v. Amazon.com, 53 Cal.App.5th 431 (2020), the first published state appellate court case to hold Amazon strictly liable for a product sold through the FBA program. As in Bolger, the CPSC complaint details how much control Amazon exerts over all facets of sales and deliveries of products that use FBA. For its part, Amazon denies it is a distributor under the CPSA and claims it has largely fixed the problem already.
This is the latest round in the ongoing battle to make online marketplaces accept responsibility for the products they sell or distribute, and comes shortly after the Texas Supreme Court ruled that use of the FBA program did not render Amazon a “seller” under Texas law of a defective remote that injured a small child.
