Amazon may be held liable for failing to warn customers of toxic chemicals in products

The California Supreme Court on Wednesday left untouched a ruling that allows customers to sue Amazon.com for failing to warn shoppers that certain products it sells may contain hazardous substances such as mercury.

The court denied a request by Amazon lawyers to review a lower court ruling that found Amazon violated the state’s Proposition 65, which requires companies to warn consumers about products they make or sell and that contain chemicals known to cause cancer, reproductive harm or birth defects.

The case involved a lawsuit filed in Alameda County that the online retail giant had knowingly allowed the sale of skin lightening creams on its website for years, despite being aware of concerns about toxic mercury levels in these creams.

Mercury can harm pregnant women and their fetuses. The lawsuit alleged that some of the products made by third parties but sold on Amazon contained levels of mercury that were thousands of times the US federal legal limit.

Amazon did not immediately comment on the Supreme Court’s action, which allows the previous court ruling to be used as precedent in state courts.

However, California has such a large market share that any action taken by Amazon to comply with Proposition 65 could have a much broader impact on consumers, said Rachel Doughty, attorney for the plaintiff in the lawsuit.

“It could look like removing products containing carcinogens or reproductive toxins from Amazon’s site, or Amazon taking steps to ensure a warning is provided…so consumers can take steps to avoid harm. ‘exposure to these chemicals,” Doughty said in an email.

The lawsuit was dismissed in 2019 by a judge who found that Amazon was protected by a section of the federal Communications Decency Act that shields websites from liability for content posted by other parties.

In March, however, a state appeals court said Amazon was not simply acting as a place where retailers list their available wares, but actively stocking, selling and shipping them.

A pharmacy selling the same creams would be required to issue Proposition 65 warnings, according to the ruling.

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