California Consumers Fight Back: Appeal Filed in California Case Exempting Amazon from Warning Consumers of Toxic Mercury in Skin-Whitening Creams


MEDIA CONTACT: Stefanie Spear, [email protected], 216-387-1609

BERKELEY, CA—SEPT. 12, 2019—A notice of appeal was filed last week challenging a California trial court decision that exempted online retail giant from California consumer protection mandates. This is one in a string of cases in which courts have failed to hold online retailer Amazon accountable to consumer protection laws when facilitating “third-party” sales of banned, mislabeled, boot-legged, or illegally imported products on Amazon’s website. Now, California consumers are fighting back.

California’s Safe Drinking Water and Toxic Enforcement Act is intended to protect consumers by requiring companies to warn California residents before selling products that expose them to known carcinogens or reproductive toxins. Mercury and mercury compounds, known neurotoxins, were among the first chemicals recognized under the Toxic Enforcement Act as being subject to the warning requirement. 

The U.S. Food and Drug Administration (FDA) regulates products that are marketed for skin-lightening, and has banned mercury for use as a skin-lightening agent due to its toxicity. Yet, testing of skin-lightening creams, which are largely marketed to and used by women of color, purchased through Amazon found dangerously high levels of mercury — thousands of times the legal limit permitted in other cosmetic products. With such high levels of mercury, the products fall within the misbranded and adulterated drugs classification set by the FDA. The creams are so toxic that they — and any household and personal items they come into contact with — must be treated and disposed of as hazardous waste in California. 

“I am shocked at the high levels of toxic mercury in cosmetics sold by Amazon,” said Dr. Gina Solomon, principal investigator at the Public Health Institute, clinical professor of medicine at University of California San Francisco, and leading expert on this issue. “These levels aren't just illegal, they are dangerous to health. Mercury is an insidious poison that damages neurological and kidney function, and is particularly dangerous during pregnancy. There are good reasons why mercury is illegal in anything more than trace amounts in cosmetics in the United States. It's appalling that Amazon is trying to get away with selling these illegal and toxic products to unsuspecting consumers.”

The trial court decision held that Amazon carried no responsibility to warn consumers about the presence of extremely high levels of mercury based on a loophole in a federal law called the federal Communications Decency Act. This law allows Amazon to be treated as a content provider similar to Facebook, rather than as a consumer product retailer when products on its site are sold through “third party vendors.” The appeal challenges that decision as wrong.

The decision sparked backlash by environmental and consumer health advocates. “Amazon has the responsibility and resources to stop exposing their customers to this dangerous neurotoxin,” said Michael Bender, international coordinator of the Zero Mercury Working Group.  “At the same time, FDA and the courts must enforce the regulations — no matter how big the retailer — since no one is above the law.”

“Legal rulings that allow Amazon to facilitate worldwide sales of toxic products and evade responsibility for meeting state and federal laws binding other retailers, simply because it never takes legal ownership of a product, is a travesty,” said Danielle Fugere, president of As You Sow, a plaintiff in a separate ongoing case against Amazon for failing to warn of mercury in skin-lightening creams. “This makes it easy for sellers who may be located anywhere in the world, to sell toxic products containing mercury and then disappear and avoid liability for the harms caused by those products.” 

The decision exempting Amazon from state warning requirements reflects a failure of law to keep up with changing marketplace realities. “Amazon’s store shelves may be virtual, but the products’ on those shelves can have the same toxic impact on human health as those in any other brick and mortar store,” said Andy Behar, CEO of As You Sow.

In fact, Amazon is opening its shelves to vendors worldwide, with very little oversight. A recent investigation by The Wall Street Journal highlights Amazon’s failure to protect consumers from dangerous products. Investigators for The Wall Street Journal identified no fewer than 4,152 mislabeled, banned, and/or illegally imported products on Amazon’s website. “Imagine Walmart arguing that it had no responsibility for the products sold in its stores because the products were manufactured or supplied by a third party,” said Behar. “That doesn’t happen.” 

The failure of courts to apply the law in a way that ensures that e-commerce — which is now reaching tens of millions of people — plays by the same consumer protection rules as brick and mortar stores leaves consumers unprotected. This trend is particularly concerning as Amazon has shifted its focus to encourage and facilitate third party sales on its website. According to Amazon, third party sales now make up nearly 60 percent of the physical gross merchandise sold on Amazon, making consumers highly vulnerable to toxic, mislabeled, dangerous, and illegal products. 

“It defies all reasonable expectations to allow the behemoth retailer to open its doors to toxic products in a way that could never occur in traditional commerce, while avoiding any liability whatsoever,” said Fugere. “This creates an unreasonable advantage for Amazon over its competitors, who must police their products to ensure consumer safety. That cost-cutting advantage for Amazon will ensure that consumers increasingly have fewer choices for safe purveyors of products.”

For more information on As You Sow’s work on toxic enforcement, click here.

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As You Sow is a nonprofit organization that promotes environmental and social corporate responsibility through shareholder advocacy, coalition building and innovative legal strategies. Click here to see As You Sow’s shareholder resolution tracker.