76 Cal.App.5th 200
Cal. Ct. App.2022Background
- Plaintiff Larry Lee sued Amazon under California’s Proposition 65 alleging Amazon exposed consumers to mercury by offering third‑party skin‑lightening creams (Faiza, Face Fresh, Monsepa, Meiyong) on its website without warnings.
- Lee purchased samples from Amazon and laboratory testing found very high mercury levels (2,000–21,000 ppm) in five tested units.
- Trial court limited liability to only a few tested ASINs, found the single‑sample testing insufficient to prove other units contained mercury, ruled Lee failed to prove exposure or Amazon’s knowledge, and granted Amazon immunity under 47 U.S.C. § 230.
- Experts for Lee (Solomon, Steinberg) testified a single high result shows mercury was an intentionally added active ingredient and therefore presence can be generalized; Amazon’s expert (Sheehan) disputed extrapolation, stressing batch variability.
- The Court of Appeal reversed: it held the single high‑level tests sufficed to show those products contained mercury; constructive knowledge is a permissible basis for Proposition 65 liability; evidence of actual consumer use is not required to prove an "expose" claim; and § 230 did not bar enforcement of Amazon’s independent Proposition 65 duties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a single tested unit showing very high mercury permits inference that other units of the same product contain mercury | Lee: one high result can show mercury is an intentionally added active ingredient so presence can be generalized for that product line | Amazon: one sample cannot be extrapolated because of batch/unit variability; more sampling needed | Court: single high‑level tests are sufficient to prove those tested products contain mercury (for the presence question), distinguishing presence from precise quantification |
| Knowledge standard under Prop. 65 (actual vs constructive) | Lee: constructive knowledge is sufficient; businesses should be liable for what they should have discovered | Amazon: Prop. 65 requires actual knowledge; points to post‑2016 regulations requiring actual knowledge for retail sellers | Court: constructive knowledge is a proper reading of "knowingly" under Prop. 65; the 2016 regulation does not retroactively impose an actual‑knowledge rule here |
| What constitutes an "expose" under Prop. 65 — must plaintiffs prove the purchaser actually used the product? | Lee: purchase and offering for sale in ordinary course suffices; actual use evidence is unnecessary and often infeasible | Amazon: must prove actual consumer use/exposure; otherwise no realized exposure | Court: "expose" includes potential as well as realized exposure; sale/placement that "propels the product toward the individual" can satisfy exposure without proof purchaser actually used it |
| Whether § 230 of the CDA bars Prop. 65 claims against Amazon for third‑party listings | Lee: claims target Amazon’s independent conduct in bringing products to consumers and its own duty to warn, not treating Amazon as publisher of third‑party content | Amazon: CDA § 230 preempts state‑law liability because claims rest on third‑party listing content | Court: § 230 does not preclude enforcement of Amazon’s independent Proposition 65 obligations; liability based on Amazon’s role in distribution and its own conduct is not barred as treating it as publisher/speaker of third‑party content |
Key Cases Cited
- Gentry v. eBay, 99 Cal. App. 4th 816 (Cal. Ct. App.) (discussing § 230 preemption where liability would treat intermediary as publisher of third‑party listings)
- Bolger v. Amazon.com, 53 Cal. App. 5th 431 (Cal. Ct. App.) (online marketplace may be subject to product‑related duties based on its role in distribution; § 230 not necessarily insulating marketplace from such duties)
- Barnes v. Yahoo!, 570 F.3d 1096 (9th Cir.) (§ 230 bars liability that treats a site as publisher, but certain promises/contracts can create independent duties)
- Internet Brands, Inc. v. [plaintiff], 824 F.3d 846 (9th Cir.) (distinguishing publisher‑type claims from independent duties to warn)
- HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir.) (§ 230 does not provide blanket immunity from generally applicable laws and regulations)
- Roommates.com, LLC, 521 F.3d 1157 (9th Cir.) (limits of § 230 and when site design contributes to unlawful content)
- Hassell v. Bird, 5 Cal.5th 522 (Cal.) (describing § 230 purpose and scope)
- Tsasu LLC v. U.S. Bank Trust, 62 Cal. App. 5th 704 (Cal. Ct. App.) ("knowledge" can include constructive knowledge for statutory interpretation)