LARRY LEE, Plaintiff and Appellant, v. AMAZON.COM, INC., Defendant and Respondent.
A158275 (Alameda County Super. Ct. No. RG14738130)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 3/11/22
CERTIFIED FOR PUBLICATION
Lee maintains Amazon is not protected by the CDA and the trial court erred in its view of the evidence required to establish the alleged statutory violations.
BACKGROUND
California‘s Safe Drinking Water and Toxic Enforcement Act of 1986 (Act) (
The present case concerns four brands of face creams advertised as skin-lightening or skin-whitening products: Faiza, Face Fresh, Monsepa, and Meiyong.
Lee‘s second amended complaint listed 27 products offered for sale on Amazon‘s Web site under these brand names, identified by individual product name or description and “Amazon Standard Identification Number” or
Lee had laboratory tests performed on samples of these products purchased from Amazon, which found 15,000 ppm mercury in a sample of Monsepa Express Peeling cream (ASIN B0030K8GJY) tested in 2017, 9,600 ppm of mercury in a sample of Faiza Beauty cream (ASIN B00WORM8R0) tested in 2016, 5,600 ppm of mercury, in a sample of Face Fresh Beauty cream (ASIN B00ZP38YQY) tested in 2015, 21,000 ppm of mercury in a sample of Meiyong Seaweed Super Whitening cream (ASIN B00CVJKBDE) tested in January 2015, and 2,000 ppm of mercury in another sample of Meiyong Seaweed Super Whitening cream (ASIN B008XRYQUM) tested in September 2015.
Several samples of Monsepa creams (not purchased from Amazon) had previously been tested for California agencies: Tests performed for the
Additionally, in 2013, the European Union‘s Rapid Alert System for dangerous non-food products (RAPEX) issued two alerts for Faiza Beauty Cream, one reporting 5,430 ppm mercury and the other reporting 5,940 ppm mercury, and an alert for Face Fresh Beauty Cream reporting 4,620 ppm mercury.
The CDPH issued a health risk warning on January 14, 2014, for certain imported skin-lightening creams that had been found to contain high levels of mercury, including “Monsepa Bleaching Express Peeling.”
Lee provided Amazon a 60-day “Notice of Violation” pursuant to Proposition 65 (
After a bench trial in January 2019, the trial court ruled in favor of Amazon, finding the company immune from liability under section 230 of the federal CDA (
Mercury in Skin-Lightening Creams
As described by Lee‘s expert witness on mercury in skin-whitening creams and resultant health risks, Dr. Gina Solomon,8 mercury exists in three forms (elemental, inorganic and organic), all of which are toxic, with serious effects on bodily systems and organs at a cellular level. Inorganic mercury (the form used in skin creams) is “very, very toxic” to kidney function and also has serious effects on reproductive function and fetal development. Animal studies consistently show reduced fertility, fetal viability and birth weights at “pretty low level exposures.” In both humans and rodents, prenatal exposure at “pretty low levels” has been shown to result in profound deafness. Solomon testified that the levels of mercury found in skin creams are in the same range as those shown to cause these
The adverse effects of mercury are not limited to the direct users of the creams. The form of mercury used in skin-lightening creams—inorganic mercury—can release mercury vapor, especially in warm conditions.9 The CDPH has found mercury contamination resulting from use of skin creams requiring extensive decontamination of houses, including items such as washing machines, mattresses and sofas, and disposal of items like toys, towels, and bedding as hazardous waste. In the case of a family Solomon treated for mercury poisoning, mercury vapor was found emanating from the hands of the woman who used the cream, and decontamination of her hands took a month of repeated applications of a binding compound.
The primary users of skin-lightening creams are women, principally women of color. At the time of trial, the CDPH was conducting educational events in communities where the creams are known to be used, as well as a buyback program for people to return the creams and receive money to purchase substitutes.
Not all skin-lightening creams contain mercury: CDPH tests of more than 100 skin-lightening creams found seven that were positive for mercury.10 Of a total of five ingredients known to whiten skin, the only one permitted in the United States is hydroquinone.
Solomon testified that the mercury concentrations found in the creams tested in this case meant mercury was “definitely not” a “trace amount,” but rather an intentionally added active ingredient; the concentrations were “absolutely inconsistent” with mercury being a trace contaminant. The range of concentrations in the tested samples, between 2,000 and 21,000 milligrams per kilogram (2,000 to 21,000 ppm or .2 to 2 percent), was consistent with active ingredients in other consumer products, such as 2 percent of the herbicide in RoundUp, 1 percent cortisone in anti-inflammatory skin cream or .2 percent sodium fluoride in toothpaste. Prior to her work on this case, Solomon had seen the 2014 CDPH press release warning consumers about mercury in certain skin-lightening creams, including Monsepa, and believed the product contained mercury because she considered product warnings from the CDPH highly credible; the test results Lee obtained in 2017 confirmed her opinion and showed the formula had not been changed despite the health alert.
Based on the test results and language used in the Amazon listings for the skin whitening creams, Solomon was certain all units of the products tested would contain mercury. Solomon testified that “very little actual testing” is necessary to answer the “yes or no” question whether an intentionally added ingredient is present in a product, and regulatory agencies “not infrequently” base a decision on a single sample or very few
Steinberg similarly testified that the test results in evidence were sufficient to conclude the products at issue contained mercury because there was no way the amount of mercury found in samples Lee had tested could be due to a trace contaminant that might vary between batches or lots; it had to be a deliberately added ingredient He testified that in making emulsions (the form of the skin creams at issue), at least three or four tests are usually run per batch for purposes of quality control and quality assurance, to ensure uniformity and confirm the product meets specifications and is free of contamination, and most companies test each batch before filling individual containers for consumer sales. Testing of multiple batches of each product is not necessary to determine whether mercury is an ingredient in a cosmetic product, however, because at levels seen in this case, it has to have been deliberately added. The high levels of mercury found in the five samples Lee had tested, together with the products’ claims of skin whitening as the intended use, made Steinberg “very, very certain” other batches or lots of the same product would all contain mercury as an ingredient.”
Steinberg acknowledged the possibility there could be variations in the chemical makeup of the products between batches; that he did not have
Nevertheless, Steinberg testified he could be “very certain” the products tested here contained mercury without analyzing every package because “cosmetic-like products” are manufactured in “larger amounts” with “a consistent formulation,” mercury is the active ingredient, and cosmetic companies do not like to change formulations of creams “unless it‘s absolutely mandatory, or marketing just absolutely demands it, because it‘s very time-consuming” and a significant added expense. A different chemical could not simply be substituted for mercury; the product would have to be “totally reformulate[d]” because the emulsion would not be stable.
Steinberg was shown a customer comment on the product page for the Monsepa cream Lee had tested saying the news had reported on January 9, 2014, that the product contained high levels of mercury, providing a link to the official alert on the CDPH Web site, and asking vendors to stop selling
Dr. Patrick Sheehan, Amazon‘s expert witness on risk assessment and evaluation of health risks from chemical exposures,15 agreed that mercury is a known ingredient in skin-lightening creams and that in each of the tested samples in this case, mercury was an ingredient, not a contaminate. He
According to Sheehan, the literature on skin-lightening creams reflects variability as to measurable added mercury, with some batches having no detectable mercury and others having levels “related to added mercury.” Asked about the CDPH investigation in which seven of 120 samples of skin-lightening creams tested positive for significant amounts of mercury, Sheehan testified the data suggested there would be detectable added levels of mercury in relatively few skin creams. He disagreed with Steinberg and Solomon because they only evaluated the individual units tested, with no effort to “assess variability among batches or among products.” Asked if they followed “appropriate scientific method,” Sheehan testified, “I don‘t believe they followed any method. They made some assumptions. So no, they did not follow any sort of standard method for characterizing variability within a product.”
Sheehan acknowledged that a study he conducted on whether users of talcum powder in the 1960‘s and 1970‘s were exposed to asbestos was based on analysis of five individual containers, each a different product. He also acknowledged that at his deposition he did not recall having worked on a cream applied to the body other than sunscreen, which he declined to answer questions about, and that he had never previously been an expert in a case involving mercury and skin-lightening cream, advised a client regarding mercury in skin-lightening creams, done any work evaluating the presence or absence of mercury in cosmetics, or otherwise had experience with analyzing heavy metal exposure in creams.
Amazon‘s Marketplace
As described by Christopher Poad, Director of Amazon Business International, Amazon both sells products directly to customers through its “Amazon Retail” business and operates a “marketplace” through which third-party sellers sell products to customers. Approximately 2.5 million third parties list and sell approximately 600 million unique products on the Amazon Web site. In 2018, the total value of products sold on the Amazon
Amazon provides third-party sellers with the ability to list their product for sale, provide a title, description and image for the listing, and have Amazon collect payment on the sellers’ behalf. Sellers can choose to fulfill orders themselves, making their own arrangements for warehousing and shipping, or use Amazon‘s “Fulfillment by Amazon” or “FBA” service. With FBA, the third-party seller‘s products are stored in an Amazon fulfillment center (warehouse), then shipped to the customer by Amazon when the seller makes a sale. For third-party sales, ownership of the product is transferred from the seller to the customer without Amazon taking title. By contrast, for Amazon Retail, Amazon purchases the merchandise from a supplier, owns it, and then resells it to the customer.
The products at issue in this case were all placed on the Amazon Web site by third-party sellers, and at least one used the FBA service.
Third-party sellers are required to consent to Amazon‘s “Business Solutions Agreement,” which details matters including indemnification and insurance requirements for sellers. Amazon charges fees to sell products on the marketplace, which it earns when the seller completes a sale and the product is shipped to the customer. Customers use the Amazon Web site to complete purchases and in most transactions, there is no communication between customers and third-party sellers; if there is, it goes through the Amazon platform. Amazon‘s Web site does not provide contact information for third-party sellers; it offers a “contact seller” option through which a customer can send a message, which Amazon forwards to the seller, and the seller can respond.
During the process for setting up the product description page, sellers “have the ability to flag whether the product they are selling requires a Proposition 65 warning for California residents,” and if they select this option, a warning is displayed on the product description page that links to a page in the customer help section of the Web site. In its “policies and agreements” for sellers, Amazon provides a list of examples of “prohibited listings” that includes “Products and ingredients that the [FDA] has determined present an unreasonable risk of injury or illness, or are otherwise unsafe, such as . . . [s]kin creams containing mercury.”
Amazon‘s director of worldwide product compliance and safety, David Kosnoff, testified in his deposition that the Amazon product safety team in
Kosnoff testified Amazon would have been aware of the 2013 RAPEX notification for Faiza Beauty Cream. He did not know whether the product was listed on Amazon‘s European Web sites. He was aware a “very similar” product was listed on the United States Web site and did not believe any action would have been taken to notify the United States marketplace of the European recall. The record documents sales of Faiza Beauty Cream on the Amazon Web site through late 2015.
Face Fresh, which was also the subject of a 2013 RAPEX notification, was being sold on Amazon‘s Web site as of January 16, 2019.
After Lee‘s May 22, 2014, 60-day notice of violation, which listed Monsepa Express Peeling Night Face Cream as an example of “[s]kin-lightening creams,” on June 11, 2014, Amazon added a Proposition 65 warning to the listing for Monsepa Express Peeling cream (ASIN B0030K8GJY). Between these dates, there were five sales of this product (May 23, 29, 31, June 2, 6). Amazon removed the listing from the Web site on August 12, 2014.
We begin with the elements of the Proposition 65 claim because, as will be seen, the nature of this claim is critical to the question of immunity under section 230 of the CDA.
I.
The trial court found Lee did not prove that each of the 27 products identified in the second amended complaint contained mercury because Lee purchased and tested only one unit each of five products.16 The court concluded the product detail pages from Amazon‘s Web site that Lee introduced into evidence did not establish the 27 products originally identified were the same products he tested because the pages were for only a few products and contained “multiple material differences, including different “product names, pictures, sellers, descriptions, ASINs and UPCs.” The court therefore limited Lee‘s claims to “the four products he purchased on Amazon and tested.”
Moreover, the court found Lee did not prove the test results showing mercury in one unit of a given product should be generalized to other units of that product or similarly named ones because Lee did not introduce evidence of “how, when, where or by whom any of the tested units were manufactured, filled, stored, or distributed, including any lot or batch information for the tested samples,” leaving no scientific or evidentiary basis for determining whether other units of the same product or similar ones under the same
Lee argues the trial court‘s conclusions are both legally and factually unsupported. Preliminarily, he points out that the trial court ignored his narrowing of the products at issue from the 27 identified by ASIN in the second amended complaint to four products appearing under 11 ASINs on Amazon‘s Web site, and argues the trial court erred in limiting the case to four ASINs for which laboratory tests were obtained. More fundamentally, he argues the trial court erred in concluding test results for one unit of a given product could not be extrapolated to other units of the same product for purposes of determining whether Proposition 65 warnings were required.
Amazon treats these issues as purely factual, to be reviewed under the substantial evidence test. Focusing on descriptions of this test as requiring us to “look only to the evidence supporting the prevailing party” and “discard evidence unfavorable to the prevailing party” (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449), Amazon argues the court‘s conclusions were supported by its witnesses’ testimony—Poad‘s, as to each ASIN representing a distinct product, and Sheehan‘s (along with Steinberg‘s and Dr. Brian Lee‘s) as to a test of one unit being insufficient to demonstrate the presence of mercury in another unit of the same product.
In particular, “expert testimony does not constitute substantial evidence when based on conclusions or assumptions not supported by evidence in the record (Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th 1123, 1137), or upon matters not reasonably relied upon by other experts (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135). Further, an expert‘s opinion testimony does not achieve the dignity of substantial evidence where the expert bases his or her
We turn first to the trial court‘s conclusion that a laboratory test finding a high level of mercury in one unit of a skin-lightening cream is an insufficient basis for concluding other units of the same product contain mercury. All the relevant experts—Steinberg, Solomon, and Sheehan—agreed that because of potential variability in factors such as ingredients, supply sources, manufacturing processes, and storage conditions, multiple samples would have to be tested to ensure consistency of a product within a batch and across multiple batches. Such testing would be necessary, all agreed, to determine matters such as the amount of an intentional ingredient or presence of a contaminant.
The question in the present case, however, is whether the test results for one unit of a product could be sufficient to determine whether mercury was present in other units—not whether any specific amount was present, just whether it was present at all. Lee‘s experts testified that answering this “yes/no” question did not require testing more than one unit of each product, or considering variables such as manufacturing and packaging procedures, because the amount of mercury in the unit tested was so high that it
In rejecting Solomon‘s and Steinberg‘s conclusions as to generalizing the test results, the trial court first cited the deposition testimony of Dr. Brian Lee, who Lee had identified as an expert witness but did not present as a witness at trial, that “there is insufficient information to conclude that any untested unit contains mercury.”
Dr. Lee testified at his deposition that his only assignment for this case was to determine “how much an exposure might occur to users.” Asked whether he would be offering an opinion that any unit of a product at issue in the case contained mercury other than the 11 samples for which he was given lab test results, Dr. Lee first clarified that the questioner meant “all of the other units that are on the market,” then responded, “No. I only know what is in these products. These may represent what‘s in the other products, but until you actually test what is in the products, there could be several batches.”
The trial court‘s summary of Dr. Lee‘s deposition testimony makes it appear more definitive than it actually was. The questioner explained he was asking about “units” of a product, not “product,” but Dr. Lee‘s response referred to “products,” suggesting he was saying the products tested might or might not represent other products, not necessarily that one unit of a given product might or might not represent other units of that product (although
Dr. Sheehan was expressly asked whether it made any difference to him that mercury was an intentionally added ingredient and testified that it did not. His response, while not entirely clear, appears to concern variability among batches without explaining how variability would extend to complete absence of the product‘s active ingredient.17 The trial court summarized Dr. Sheehan‘s testimony as stating that “there is variation in the mercury content of skin-lightening creams, even when one expects to find mercury, and that a scientific method is needed to generalize from one unit to other units and other batches.” But as far as we are aware, Dr. Sheehan did not explain why this is so in the case of a product intended to address cosmetic issues for which mercury is an effective treatment and demonstrated—albeit in one or a small number of samples—to contain such high levels of mercury that it must be an intentional ingredient.
Amazon‘s statement that this is “a rare case where all experts on both sides agreed that it was not possible to extrapolate test results from a single unit of four products to all other units of that product line” is thus divorced from the record. This was Dr. Sheehan‘s testimony, but not Dr. Solomon‘s or Steinberg‘s; Lee‘s witnesses both testified that in the circumstances here, the tests could be generalized to other units of the product line from which the tested sample was taken.
The trial court also noted that the National Food Lab‘s report for the samples of Monsepa creams tested for the California Department of Justice
Finally, the trial court noted that the RAPEX notices “delineate batch numbers of any product involved within the notice(s).” The observation is only partially accurate. The RAPEX notice for Face Fresh Beauty Cream provided information in the spaces for “Type/number of model” and “Batch number/Barcode,”18 but the RAPEX notice for Faiza No. 1 Beauty Cream, in these spaces, stated “Unknown.” Moreover, the warning issued and report of action taken for both RAPEX notices pertained to “the product,” unlimited by batch number or otherwise. Both notices, for “Risk description,” stated that “[t]he product poses a chemical risk because it contains mercury” and “[t]he product does not comply with the Cosmetics directive 76/768/EEC.” Both notices reported the “[m]easures adopted by notifying country” as “Voluntary measures: Withdrawal of the product from the market.”
In sum, the trial court‘s stated reasons for concluding that a laboratory test finding a high level of mercury in one unit of a skin-lightening cream is an insufficient basis for inferring other units of the same product contain mercury do not withstand scrutiny. The only evidence directly supporting
Dr. Sheehan‘s testimony is also difficult to reconcile with the practice of governmental entities responsible for regulating harmful consumer products. A CDPH employee who helped write the January 2014 news release warning against use of certain skin-lightening creams testified that the sample of Monsepa Express Peeling cream that was the basis for the alert did not have batch or lot numbers or other such identifying information and the alert was issued “for any and all products that have this appearance in name.” Dr. Solomon testified that “it‘s something regulatory agencies not
Proposition 65 imposes a duty to warn based on presence of a listed chemical in a product, without requiring uniformity across individual units in the precise amount of the chemical in a given unit. When the chemical at issue is the product‘s active ingredient, its complete absence in an individual unit would be fortuitous. “Proposition 65 is a ‘right to know’ statute requiring companies that expose consumers to carcinogens or reproductive toxins to provide a reasonable and clear warning. (
Amazon‘s assertion that there was no evidence mercury was an intentional ingredient in these products is without basis in the record and directly inconsistent with even its own expert‘s testimony: Sheehan fully agreed that mercury was present in the samples tested in amounts demonstrating it was an ingredient, not a contaminant. Amazon points to the CDPH testing that found most skin-lightening creams on the California market did not contain mercury, but that does not refute the undisputed
Given the undisputed evidence that samples of five skin-lightening products purchased on Amazon‘s Web site contained high levels of mercury as an intentionally added ingredient, there is no basis for a conclusion that Lee failed to prove this element of his case with respect to these products, at a minimum. If Lee proved the other elements of his claim, it cannot be rejected—at least for these specific products—on the ground that he failed to prove the products contained mercury.
Beyond the products tested, a question remains. The trial court concluded Lee did not prove each of the 27 products listed by ASIN in the second amended complaint contained mercury because the evidence did not establish that they were the same products as the ones19 tested. Lee subsequently limited his claims to 11 products that he claimed were the same as those tested despite having been assigned different ASINs. Given our rejection of the trial court‘s conclusion that Lee failed to prove the tested products contained mercury, if the remaining elements of his claims were also established as to these specific products, the trial court will have to determine whether the untested products within the identified group of 11 were in fact the same products as the ones tested.
II.
As earlier stated, Proposition 65 provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any
Proposition 65 does not define the term “knowingly.” (See
The trial court provided little explanation of its determination that Proposition 65 requires proof of actual knowledge. In granting Amazon‘s motion in limine to exclude evidence of constructive knowledge, the court cited the “statute itself” and “the nature of the Prop 65 process including the notice aspects.” In its statement of decision, the court stated, “Proposition 65 and its terms apply only to ‘businesses that know they are putting one of the chemicals into the environment.’ (See Nicolle-Wagner v. Deukmejian (1991) 230 Cal.App.3d 652, 659 [quoting with approval language from ballot argument in favor of Proposition 65].)”
Nicolle-Wagner v. Deukmejian, supra, 230 Cal.App.3d 652 (Nicolle-Wagner) was not concerned with the nature of the knowledge requirement in Proposition 65 and does not discuss any distinction between actual and constructive knowledge. The question in that case was whether Proposition 65 was intended to apply to naturally occurring carcinogens and reproductive toxins in food. Holding it was not, the court described the statutory language and ballot arguments for and against Proposition 65 as indicating the measure “sought to regulate toxic substances which are deliberately added or put into the environment by human activity. . . . [¶] . . . . [T]he ballot argument in favor of Proposition 65 explains that ‘[Proposition 65] will not take anyone by surprise. [It] applies only to businesses that know they are putting one of the chemicals out into the environment . . . .’ (Italics in original.)” (Nicolle-Wagner, at p. 659.) While the emphasis on “know,” in
Lee relies heavily on a 1988 agency interpretation of the statutory “knowingly and intentionally” language as including constructive knowledge.22 “An administrative agency has the power to adopt regulations to effectuate the statutory purpose, provided the regulations are not in conflict with applicable statutes. (Woods v. Superior Court (1981) 28 Cal.3d
The agency initially responsible for implementing Proposition 65,23 in its November 1988 Revised Final Statement of Reasons for what was then section 12601 of title 22 (now tit. 27, § 25601) of the California Code of Regulations, interpreted the Proposition 65 requirement that exposures be “knowing and intentional” before a warning is required “to include exposures about which there is constructive knowledge.” (OEHHA, Revised Final Statement of Reasons, 22 California Code of Regulations, Division 2 (Nov. 1988), p. 39 (1988 FSOR).)
Amazon points out that this section of the 1988 FSOR was discussing environmental exposures, which are distinct from consumer product exposures. But the agency‘s statement about constructive knowledge was not limited to environmental exposures. While it happened to be made in a section discussing environmental exposures, as it was responding to a comment about the definition of such exposures, the “knowing and intentional” language applies to all exposures, not just environmental ones.24
The agency stated, “By adopting these new regulations, OEHHA intends to address many of the issues that have surfaced since the original regulations were adopted in 1988 by clarifying the relative responsibilities of manufacturers and others in the chain of distribution for products that are eventually sold at retail . . . .” (2016 FSOR, supra, p. 9.) As to retail sellers, the agency explained, Regulations “Section 25600.2 is based on the premises that (1) the consumer must receive the warnings mandated by [Health and Safety Code] Section 25249.6 of the Act before being exposed to a chemical known to cause cancer or reproductive toxicity; and (2) the primary responsibility for providing the warning for products, including foods, is with the manufacturer, producer, packager, importer, or distributor of those products. The regulations therefore recognize that those parties are primarily responsible for providing warnings. This is reasonable, as manufacturers usually will have greater knowledge than retailers of a product‘s chemical content and whether it causes chemical exposures that require a warning.” (2016 FSOR, p. 35.)
The trial court found it unnecessary to determine whether Amazon is a retail seller or whether Regulations section 25600.2, subdivision (e), applies retroactively to this case (as the product sales at issue preceded the 2016 amendments) because of the broad definition of parties required to provide Proposition 65 warnings (“person in the course of doing business“) and the fact Amazon did not claim to be a “retail seller” without responsibility for warnings pursuant to the 2016 regulation (Regs., § 25600.2, subd. (e)). Yet the court relied on the definition of “actual knowledge” in this regulation in finding Lee failed to establish Amazon had actual knowledge that the products contained mercury.
The trial court was clearly correct to reject Amazon‘s claim to be outside the chain of distribution. Proposition 65 imposes the duty to provide warnings on any “person in the course of doing business,” which unquestionably includes Amazon‘s activities here. As the trial court explained, “there is no language in section 25249.1 1(f) [‘definitions’ for Proposition 65] or the new regulations expressly limiting the duty to provide a Proposition 65 warning only to a ‘manufacturer, producer, packager, importer, supplier, or distributor of a product,’ or a ‘retail seller’ (under more limited circumstances described in C.C.R. § 25600.2(e)), or limiting the broad
This leaves two questions regarding Amazon‘s reliance on Regulations section 25600.2, subdivision (e): Does the regulation even apply to this case, in which the salient events preceded adoption of the regulation? And, if so, is Amazon a “retail seller” within the meaning of the regulation?
The 2016 regulations became operative on August 30, 2018 (<https://oehha.ca.gov/proposition-65/crnr/notice-adoption-article-6-clear-and-reasonable-warnings> [as of Mar. 11, 2022]). Although the product sales at issue in this case predated even the date the regulations were adopted, much less their operative date, Amazon argues the regulations apply retroactively because they simply clarified existing law. Western Security Bank v. Superior Court (1997) 15 Cal.4th 232 (Western Security), the authority Amazon relies upon, explains that while “statutes do not operate retrospectively unless the Legislature plainly intended them to do so,” “a statute that merely clarifies,
Western Security involved a conflict between the antideficiency statute prohibiting judgments for any loan balance remaining after a lender‘s nonjudicial foreclosure and the rule that the obligation of the issuer of a letter of credit is independent of any underlying contract between the issuer‘s customer and the letter‘s beneficiary. After a Court of Appeal ruled that the issuer of a letter of credit could decline to honor it after notice it would be used to satisfy a deficiency after a nonjudicial foreclosure sale, the Legislature adopted a bill expressly intended to abrogate the Court of Appeal decision and confirm the beneficiary‘s right to rely upon both the real estate collateral and the letter of credit. Western Security held the new legislation had “no impermissible retroactive consequences” because the Legislature made clear it was “a clarification of the state of the law before the Court of Appeal‘s decision,” intended to “apply to all existing loans secured by real property and supported by outstanding letters of credit.” (Western Security, supra, 15 Cal.4th at pp. 237-238.)
The “clarification” provided by Regulations section 25600.2, subdivision (e), is entirely different. As we have said, the regulation was adopted as a means of implementing the Legislature‘s directive that the agency adopt regulations minimizing the “burden on retail sellers of consumer products” by “to the extent practicable plac[ing] the obligation to provide any warning materials such as labels on the producer or packager rather than on the retail seller,” except as specified. (
Moreover, OEHHA chose to make the 2016 regulations operative two years after they were adopted. (
Amazon, therefore, cannot rely on Regulations section 25600.2, subdivision (e), to support the trial court‘s determination that Lee was required to prove actual knowledge.
Nor does Regulations section 25600.2 indicate Proposition 65, in general, contains an actual knowledge requirement. In fact, the introduction of an express “actual knowledge” requirement for retail sellers in the 2016 regulation is itself an indication that actual knowledge was not previously required to trigger the obligation to provide Proposition 65 warnings. By specifying that retail sellers are responsible for providing warnings only if they have actual knowledge of the potential consumer exposure (and no upstream entity can readily be compelled to provide the warning), Regulations section 25600.2, subdivision (e)(5), implicitly indicates there are circumstances in which constructive knowledge is sufficient to require provision of a warning. It is a familiar rule of statutory interpretation that “[a] construction making some words surplusage is to be avoided.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) The same rules of construction apply to initiative measures. (Williams v. Superior Court (2001) 92 Cal.App.4th 612, 622.) If OEHHD viewed all references to knowledge in the Proposition 65 regulations as meaning actual knowledge, it would not have needed to include an express “actual” knowledge requirement in Regulations section 25600.2, subdivision (e). The purpose of this regulation was to distinguish retail sellers’ obligations from those of entities higher on the chain of distribution. One of the ways it does so is by requiring “actual knowledge” where the statutory phrase “knowingly”
The critical question, of course, is whether the electorate intended knowingly and intentionally
to mean solely actual knowledge or constructive knowledge as well. As we have said, because Proposition 65 is a remedial law, designed to protect the public,
we construe its provisions broadly to accomplish that protective purpose.
(People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 314; Center for Self-Improvement & Community Development v. Lennar Corp., supra, 173 Cal.App.4th at pp. 1550–1551.)
The preamble to Proposition 65, section 1 of the law proposed to the voters, makes clear the measure was driven by the voters desire for greater protection against hazardous chemicals, specifically including information about exposures, strict enforcement and deterrence of actions threatening public health and safety. The preamble states: The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California‘s toxic protection programs. The people therefore declare their rights: [¶] (a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm. [¶] (b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm. [¶] (c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety. [¶] (d) To shift the cost of hazardous waste cleanups more onto offenders and less onto law-abiding taxpayers. [¶] The people hereby enact the provisions
(Ballot Pamp., Gen. Elec. (Nov. 4, 1986) text of Proposition 65, p. 53, italics added.) (Hereafter Ballot Pamp.)
The public policy reflected in these findings and stated purposes militates in favor of an interpretation of the knowingly and intentionally
requirement of defining ‘knowledge’ in [quiet title statute] to encompass both actual and constructive knowledge is the result dictated by public policy
].) Interpreting
Tsasu offers an illustration, albeit in a different context. Pursuant to the statute at issue in that case, a third party acting in reliance on a quiet title judgment retains its property rights, even if that judgment is subsequently invalidated as void, if the third party qualifies as a ‘purchaser or encumbrancer for value . . . without knowledge of any defects or irregularities in [the earlier quiet title] judgment or the proceedings.’ (
(Tsasu, supra, 62 Cal.App.5th at pp. 716–717.) Among its reasons for construing knowledge
in the statute as including both actual and constructive knowledge, the Tsasu court explained that limiting knowledge
to actual knowledge creates wholly perverse incentives because it discourages prospective buyers from checking the record of title or from heeding ‘warning signs’ necessitating further inquiry—lest they acquire actual knowledge of a defect or irregularity with a quiet title judgment that
(Id. at pp. 719–720.) The court declined to interpret the statute as limited to actual knowledge, in part, because the statute was not intended to encourage recklessness or willful ignorance.
(Id. at p. 720.)
In the context of Proposition 65, limiting the obligation to provide warnings to actual knowledge would create incentives for businesses to avoid information that might alert them to the presence of hazardous chemicals and potential for exposures. This result would be inimical to the protective purpose of the law generally, and specifically to the voters’ stated purposes of furthering the dissemination of information about exposures to toxic chemicals, strict enforcement of laws controlling hazardous chemicals and deterrence of actions that threaten public health and safety. (Ballot Pamp., supra, p. 53.)
Amazon argues the trial court‘s interpretation of confirm[ing] that a duty to disclose a fact cannot arise without actual knowledge of the fact.
The cases it relies upon, however, are not particularly helpful. In San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th 1048, the plaintiff sought recission of a release on a theory of fraudulent nondisclosure of facts the defendant of which the defendant allegedly had imputed knowledge. (Id. at p. 1055.) The court explained that in order to establish the duty to disclose underlying the claim, the plaintiff must show the material fact is known to (or accessible only to) the defendant
and the
(Ibid.) Because the duty to disclose requires some element of scienter—knowledge of the other party‘s ignorance,
it could not arise if the material facts were not actually known
to the defendant: We cannot perceive how it is possible for a principal to know the other party is ignorant of something of which the principal is equally ignorant.
(Id. at pp. 1055–1056.) This reasoning, specific to the scienter element of the tort claim at issue, has no bearing on the meaning of the knowledge requirement in a statute requiring warnings of potential exposures to hazardous chemicals.
The other case Amazon cites is no more apt. Santiago v. Firestone Tire & Rubber Co. (1990) 224 Cal.App.3d 1318 involved employees’ claims under ‘fraudulent concealment of the existence of the injury and its connection with the employment.’
(Santiago. at p. 1323.) Santiago held the employees were required to show the employer had actual knowledge of the employees’ injuries and fact they were caused by their employment, rejecting the argument that constructive knowledge should apply based on a detailed analysis of the history of Labor Code section 3602, the language of the statute, and the cases construing it.
(Id. at pp. 1331–1334.) Amazon quotes the Santiago court‘s statement that ‘defendant obviously could not be charged with concealing matters which it did not know.’
(Id. at p. 1334.) But the issue in the present case is not concealment of facts, and the holding that fraudulent concealment necessarily requires actual knowledge saysknowingly
with respect to the obligation to provide warnings of potential exposures under Proposition 65. There is nothing rationally or logically inconsistent with a requirement that a business provide warnings—or be liable for failure to do so—if it knows or has sufficient reason to know it is exposing any individual
to a listed toxic chemical.
Amazon finds support for its argument that knowingly and intentionally
while knowingly.
Relying on the rules of statutory interpretation that instruct us to, if possible, give significance to every word and avoid a construction that renders some words surplusage (Moyer v. Workmen‘s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230), Amazon argues we cannot ignore the inclusion of intentionally
in knowingly and intentionally
imposes a higher level of knowledge
than the word knowingly
alone.
As we have said, neither Proposition 65 nor the regulations define intentionally.
’
(Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 504.)When a term goes undefined in a statute, we give the term its ordinary meaning.’
(De Vries v. Regents of University of California (2016) 6 Cal.App.5th 574, 590–591.) ‘In divining a term‘s ordinary meaning,
courts regularly turn to general and legal dictionaries.’ (Id. at p. 591; People v. Hodges (1999) 70 Cal.App.4th 1348, 1355.)
There is overlap in dictionary definitions of the terms knowingly
and intentionally
; definitions of the former sometimes refer to the latter andknowingly
tend to focus on awareness28 while definitions of intentionally
tend to focus on purpose.29
intentionally
as adding this concept of purpose than as giving knowingly
a different meaning than it would have when used on its own. We see no basis for reading intentionally
in knowingly
to require a higher level of knowledge than knowingly
would otherwise convey. As we have said, an actual knowledge requirement would narrow the scope of intentionally
in this statute, as opposed to
Finally, Amazon points to the absence in Proposition 65 of language often used to indicate a statute contemplates constructive knowledge. (E.g.,A person or entity shall not enter into a contract or agreement for labor or services . . . where the person or entity knows or should know that the contract or agreement does not include funds sufficient to allow the contractor to comply with all applicable . . . laws . . .
]; ‘Misappropriation’ means: [¶] (1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means
].) While the presence of such language may compel a conclusion that the statute encompasses constructive knowledge, its absence is not dispositive. (E.g., PacifiCare Life & Health Ins. Co. v. Jones (2018) 27 Cal.App.5th 391, 417–418 [upholding regulation defining knowingly,
in statute delineating unfair and deceptive insurance business practices, as including constructive knowledge]; Tsasu, supra, 62 Cal.App.5th at pp. 717–721 [construing knowledge
in quiet title statute as including constructive knowledge].)
We conclude the trial court erred in ruling that Lee was required to prove Amazon had actual knowledge the products at issue contained mercury and excluding evidence of constructive knowledge. Of course, this error would be of no consequence if Lee is correct that the record demonstrates substantial evidence of actual knowledge as a matter of law. Lee argues Amazon had actual knowledge of the mercury in the Faiza and Face Fresh skin-whitening creams from the RAPEX notices and for the Monsepa cream from Lee‘s notice of violation. He does not contend Amazon had actual knowledge as to the Meiyong products.
Lee‘s argument is strongest with respect to the Monsepa cream. Lee asserts that a notice of violation necessarily establishes actual knowledge, citing the definition of [p]roof of actual knowledge focuses on what information a defendant must have been aware of
(People v. ConAgra Grocery Products Co., supra, 17 Cal.App.5th at pp. 84–85), and the notice of violation was directly served on Amazon.
Amazon does not dispute the general proposition that a notice of violation establishes actual knowledge, but it argues the notice in the present case was insufficient to do so. The notice of violation named Amazon and aztopselstore.com (the distributor of Monsepa cream) as violators, specified the chemical (Mercury
), routes of exposure (Ingestion, Dermal, Inhalation
) and type of harm (Developmental Toxin
), and identified the products as [s]kin-lightening creams
with Monsepa Express Peeling Night Face Cream, 15 mL size
as an example. Amazon argues the reference to [s]kin-lightening creams
did not provide notice as to any specific product, and the CDPH‘s investigation, which found mercury in only seven of over a hundred skin-lightening creams tested, demonstrated most such creams do not contain mercury. Amazon further argues the fact that the notice of violation named Monsepa Express Peeling Night Cream
was insufficient to establish knowledge because the product Lee had tested for this litigation has aMonsepa Express Peeling
per packaging; Monsepa Express Peeling Remove Dark Spots Face Cream
on Amazon listing).
Amazon‘s argument is not persuasive. As Lee points out, the regulations require a notice of violation to provide the name of the consumer product or service, or the specific type of consumer product or services, that cause the violation, with sufficient specificity to inform the recipients of the nature of the items allegedly sold in violation of the law and to distinguish those products or services from others sold or offered by the alleged violator for which no violation is alleged.
(very broad terms, such as ‘various aerosol, paint, adhesive and/or automotive products, including but not limited to,’
that are inadequate to describe the nature of the violation that is claimed.
(OEHHA, Final Statement of Reasons, Adopt Section 12908, Notices of Violation, title 22, Division 2, California Code of Regulations, p. 10.) On the other hand, the agency stated, [c]learly it would be sufficient simply to say ‘aerosol spray paint,’ ‘car wax’ or ‘paint thinner.’ Such a description would at least identify the category of products that will be the subject of the action, and would enable the public agency to focus the investigation.
(Ibid.)
Lee‘s notice of violation satisfied these parameters. The notice of violation informed Amazon that a category of products—skin-lightening creams
—allegedly caused exposure to mercury and specifically named one such product. Although the product Lee had tested was identified with a slightly different name on the Amazon Web site, the notice, Web site listing, and product packaging all used the distinctive Monsepa Express Peeling
identifier. In our view, this constituted notice that the Monsepa skin-
In arguing Amazon had actual knowledge that the Faiza and Face Fresh creams contained mercury from the RAPEX notices for these products, Lee relies on Kosnoff‘s testimony that Amazon employees in Europe review RAPEX notices; Amazon would have been aware of the 2013 RAPEX notice for Faiza Beauty Cream; and he was aware a very similar
product was listed on the American Web site. This testimony is less definitive proof of actual knowledge than the evidence regarding the Monsepa cream: Kosnoff described a general business practice that would be expected to result in Amazon‘s awareness of the RAPEX notices, but his testimony also raised questions about the relationship between and management of Amazon‘s European and American Web sites which are not addressed by any evidence in the record. The RAPEX notices may well provide persuasive evidence of constructive knowledge, but we cannot find them sufficient to establish actual knowledge as a matter of law so as to overturn the trial court‘s finding of no actual knowledge.
Because the trial court precluded evidence of constructive knowledge, we have no means of evaluating whether Lee will be able to make a showing sufficient to alter the ultimate outcome of this case.32 Evidence of
With regard to the latter, retail seller
or can be considered a seller
if it does not take title of the product in question (see Milo & Gabby LLC v. Amazon.com, Inc. (Fed. Cir. 2017) 693 Fed. Appx. 879, 890 [Amazon not a seller
for purposes of copyright infringement claim]), Amazon‘s role in the present case wasusually will have greater knowledge than retailers of a product‘s chemical content and whether it causes chemical exposures that require a warning.
(2016 FSOR, supra, p. 35.) Still, Amazon made the products available for purchase by the ultimate consumer and, at a minimum, facilitated the sale by providing a forum for it to take place, handling the finances of the transaction and controlling communications between the customer and the third-party sellers. All these facts may be relevant considerations with respect to what knowledge can be attributed to Amazon.
III.
The trial court found Lee failed to prove that Amazon exposed consumers to mercury because he did not prove anyone actually used the skin-lightening products at issue. The trial court noted that Lee did not present any evidence of exposure related to any of the product purchasers, despite obtaining those purchasers’ contact information from Amazon during discovery
; the evidence established there has been a public campaign to discourage the use of skin-lightening creams that may contain mercury, including a buy-back program for new and used products
; and [t]here was no evidence that anyone was exposed to mercury in connection with any of the four units that were actually purchased by plaintiff‘s counsel through Amazon‘s marketplace.
Lee maintains the trial court‘s interpretation of expose
improperly narrowed the scope of Proposition 65, imposing a burden that would make it
Moreover, Lee argues, proof of individual consumers’ use of the products is unnecessary because common sense dictates a conclusion that people purchase products in order to use them. Lee and the Attorney General both point to the statutory maxim that [t]hings happen according to the ordinary course of nature and the ordinary habits of life.
(always assumed that people who buy cookies eat them; people who buy sodas drink them; and people who buy skin creams apply them to their skin.
The Attorney General states, companies do not sell products that their customers will not use, and consumers do not buy skin creams unless they intend to apply them to their skin. Accordingly, in his cases, the Attorney General has not provided declarations from consumers that they ate the lead-containing cookies, took the vitamins, or used the anti-diarrheal medicine that have been the subject of his Proposition 65 claims
and no court has ever even suggested that such evidence was necessary.
Indeed, as Lee points out, when Lee sought a preliminary injunction in this case, one of Amazon‘s arguments in opposition was that the request was made two years after the complaint was filed and, [b]ecause Amazon blocked the sale of the relevant Products long ago, the only
The Proposition 65 regulations define expose
as meaning to cause to ingest, inhale, contact via body surfaces or otherwise come into contact with a listed chemical. An individual may come into contact with a listed chemical through water, air, food, consumer products and any other environmental exposure as well as occupational exposures.
(Clear and Reasonable Warnings,
[c]onsumer product exposure
is defined as an exposure that results from a person‘s acquisition, purchase, storage, consumption, or any reasonably foreseeable use of a consumer product, including consumption of a food.
(If a person‘s use of a product is ‘reasonably foreseeable’ even if it is not entirely consistent with label recommendations, any resulting exposures to listed chemicals can properly be considered to be ‘knowing and intentional’ on the part of the product manufacturer, and are therefore subject to Proposition 65.
(2016 FSOR, supra, p. 31.)
The trial court viewed the definition of consumer product exposure
as requiring proof of an actual ‘exposure’
and the agency‘s explanatory statement as confirming that foreseeability may impact knowledge and intent, but it does not eliminate the requirement of exposure.
In our view, however, the regulatory definition of consumer product exposure
provides less insight into the meaning of expose
as used in consumer product exposure
by replacing the phrase any reasonably foreseeable use of a product
with use of a product in accordance
or use of the product in accordance with the product labeling recommendations or ordinary conditions of use.
(2016 FSOR, supra, p. 31.) OEHHA rejected the proposed revision because it would unnecessarily limit the potential exposure scenarios to listed chemicals
and [l]imiting the scope of the definition would not be consistent with the Act.
(Ibid.) The foreseeability issue addressed in the agency‘s statement pertained only to the use
component of the provision defining consumer product exposure,
serving to limit the extent to which a business subject to Proposition 65 is required to anticipate the ways its product might be used. No such clarification was necessary for the other sources of exposure listed in the regulation (purchase, acquisition, storage).
The regulation defines consumer product exposure
by describing the sources from which an exposure can result, but it does not define what exposure
actually consists of. The phrase consumer product exposure
appears in article 6 of the Act (Clear and Reasonable Warnings
), in regulations describing the required contents of Proposition 65 warnings and methods by which they may be provided. ([n]othing in Article 6 shall be interpreted to determine whether a warning is required for a given exposure under Section 25249.6 of the Act.
The original lead agency also distinguished between the definition of consumer product exposure
and the definition of expose
for purposes of consumer exposures are triggered by the purchase of a product, rather than by consumption,
the agency stated: The definition of ‘consumer products exposure,’ however, is not intended to establish when an exposure occurs. It is intended to address the availability
(Former Cal. Code Regs., tit. 22, § 12201, subd. (f) [now tit. 27, § 25102, subd. (i)].) This could include the purchase by an individual of a product, not just the consumption of that product.
(1988 FSOR, supra, p. 10.)33
expose
any individual to a listed chemical without first providing clear and reasonable warning. The ordinary definition of expose
is [t]o lay open (to danger, ridicule, censure, etc.).
(OED, expose
OED Online <https://www.oed.com/search?searchType=dictionary&q=expose&_searchBtn=Search> [as of Mar. 11, 2022]; Merriam-Webster Dict. Online, expose
[to lay open (as to attack, danger, trial, or test)
] <https://unabridged.merriam-webster.com/unabridged/expose> [as of Mar. 11, 2022].) The original lead agency expressly relied upon this general definition of expose
in explaining the rule it adopted for calculating whether a business employs 10 or fewer employees (and therefore is not subject to the requirements of Proposition 65). (1988 FSOR, supra, pp. 19, 26 <https://oehha.ca.gov/media/downloads/crnr/art13fsorjan1988.pdf> [as of Mar. 11, 2022].) The rule requires counting all full- and part-time employees on the date on which the discharge, release or exposure occurs.
(Former Cal. Code Regs., tit. 22, § 12102; now tit. 27, § 25102, subd. (h).) Discussing the rule in the context of exposure to agricultural products, the agency rejected the assumption that exposure occurs on the date the product is consumed: In fact, nothing provides that exposure occurs only at the time a particular consumer good is consumed. The term ‘expose’ generally means ‘to lay open,’ as to something which is injurious or dangerous. Laying an individual open to a chemical hazard through a consumer product could
(1988 FSOR, p. 19.)
This interpretation makes clear that the original lead agency understood its definition of expose
to refer to any act that brings the product containing a listed chemical into contact with an individual, regardless of the individual‘s actual use. Expose,
in other words, refers to potential exposure as well as realized exposure. The regulatory definition of expose
has not changed in any meaningful way, and we are not aware of any departure from the lead agency‘s original interpretation. That interpretation is consistent with the statutory requirement that Proposition 65 warnings be provided before an individual is exposed to a listed chemical. (
expose
by its ordinary meaning is also consistent with Proposition 65‘s protective purpose. As we have said, the preamble to Proposition 65 expressly invoked the voters’ rights
to be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm[,]
and to secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.
(Ballot Pamp., supra, p. 53.) Proposition 65 is not primarily about punishment for harm that has been inflicted; it is about protection from harmful chemicals, the ability to make informed choices about coming into contact with such chemicals, and deterrence of conduct that undermines these purposes. The interpretation of
The trial court cited Consumer Cause v. Weider Nutrition Internat. (2001) 92 Cal.App.4th 363, 370, for its statement that [former section] 12201, subdivision (f) [now Cal. Code Regs., tit. 27, § 25102, subd. (i)] defines exposure in terms of a chemical . . . coming into contact with a person.
Consumer Cause did not consider whether selling or otherwise providing a product containing a listed chemical to a consumer constitutes exposing the consumer to the chemical. The issue in that case was whether the defendants exposed consumers to cancer-causing chemicals through products that did not contain any listed chemical but, when ingested, caused a chemical reaction in the body that increased natural levels of testosterone,
Amazon argues that the need for evidence of “actual exposure” was particularly important in the present case because the total number of sales at issue was relatively small and there was a public health campaign to discourage use of skin-lightening creams, including a buy-back program that recovered some products before they were used. Aside from factual questions such as whether consumers who purchased the products at issue were aware of the public health notices or participated in the buy-back program, this argument begs the relevant question. The argument is premised on the assumption that Amazon cannot be said to have exposed a consumer to mercury in a skin-lightening cream unless and until the consumer has actually applied the cream to his or her skin. As we have explained, however, we understand “expose” as used in
Amazon certainly meets this definition. As described by the court in Bolger, supra, 53 Cal.App.5th at page 438, “Amazon placed itself between [the third-party seller and customer] in the chain of distribution of the product at issue here” by attracting customers to the Amazon Web site, providing product listings for the skin-lightening creams, receiving payment for the products, requiring communication between third-party sellers and customers to go through the Amazon Web site, demanding indemnification and fees for each purchase, and, for products using the FBA program, accepting possession of the product, storing it in an Amazon warehouse, and shipping it to the customer. “Whatever term we use to describe Amazon’s role, be it ‘retailer,’ ‘distributor,’ or merely ‘facilitator,’ it was pivotal in bringing the product here to the consumer.” (Ibid.)
Finally, Amazon argues we should infer Lee attempted but was unable to discover any evidence of “actual exposure” from the fact that Lee obtained an order from the trial court compelling Amazon to provide contact information for purchasers of the products at issue, but did not present any evidence of actual use of the products. Lee’s motion to compel argued the contact information was “primarily relevant because it relates to Amazon’s defense that it should not be required to send warnings to purchasers ‘who have since used all the products,”35 as Amazon had not offered any evidence
Neither the record nor Lee’s briefs explain why he did not present evidence of individual consumers’ use of the skin-lightening products. But we see no reason to infer customers who purchased skin-lightening creams through the Amazon Web site did not use them. “Things happen according to the ordinary course of nature and the ordinary habits of life.” (
IV.
Lee contends the trial court erred in finding Amazon immune from liability for violating Proposition 65 under
“ ‘Taken together, these provisions bar state-law plaintiffs from holding interactive computer service providers legally responsible for information created and developed by third parties. [Citation.] Congress thus established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them. [Citation.]
“ ‘[S]ection 230(c)(1) precludes liability that treats a website as the publisher or speaker of information users provide on the website. In general, this section protects websites from liability for material posted on the website by someone else.’ (Doe v. Internet Brands, Inc. (9th Cir. 2016) 824 F.3d 846, 850 (Internet Brands, Inc.).) “Immunity under section 230 extends to ‘ “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” ’ (HomeAway.com, Inc. v. City of Santa Monica (9th Cir. 2019) 918 F.3d 676, 681 (HomeAway.com).)” (Bolger, supra, 53 Cal.App.5th at p. 463.) “[P]ublication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content . . . . [A] publisher reviews material submitted for publication, perhaps edits it for style or technical fluency, and then decides whether to publish it.” (Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096, 1102–1103 (Barnes).)
The trial court concluded all the elements of CDA immunity were satisfied in the present case, finding Amazon is an interactive computer service provider, Lee’s claim is “predicated on information provided by another information content provider (i.e., the third-party sellers that provided the product descriptions without a Proposition 65 warning),”37 and
Lee does not suggest Amazon is not an interactive computer service provider within the meaning of section 230, and does not dispute that the product descriptions for products sold on the Web site by third parties are provided by those parties.38 He argues, however, that his claims are not precluded by section 230 because they do not seek to treat Amazon as the publisher or speaker of information provided by the third-party sellers, but
“Congress enacted section 230 ‘for two basic policy reasons: to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material.’ ” (Hassell v. Bird (2018) 5 Cal.5th 522, 534 (Hassell), quoting Carafano v. Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119, 1122.) The Ninth Circuit has explained: “As the heading to section 230(c) indicates, the purpose of that section is to provide ‘[p]rotection for “Good Samaritan” blocking and screening of offensive material.’ That means a website should be able to act as a ‘Good Samaritan’ to self-regulate offensive third party content without fear of liability.” (Internet Brands, Inc., supra, 824 F.3d at pp. 851–852.)
Section 230 was enacted in part in reaction to an unpublished state court decision39 holding that “an internet service provider became a ‘publisher’ of offensive content on its message boards because it deleted some offensive posts but not others.” (Internet Brands, Inc., supra, 824 F.3d at p. 852.) Under the state court’s reasoning “a website had to choose between voluntarily removing some offensive third party content, which would expose the site to liability for the content it did not remove, or filtering nothing, which would prevent liability for all third party content. [Citation.] ‘In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete.’ ” (Ibid., quoting
“Simply put, the immunity provision was “ ‘enacted to protect websites against the evil of liability for failure to remove offensive content.’ ” (Internet Brands, Inc., at p. 852.)
Congress intended section 230 “ ‘ “to promote the continued development of the Internet and other interactive computer services . . . [and] to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” [Citations.] To that end, CDA immunity is to be construed broadly, “to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles. ” ’ (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 206, 222.)” (Bolger, supra, 53 Cal.App.5th at p. 463.)
Quoting Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 828 (Gentry), the trial court stated that section 230(c)(1) “preempts state law and ‘by its “plain language,” created a federal immunity to any cause of action that would make interactive service providers liable for any information originating with a third-party user of this service.’ ” In the trial court’s view, “all of the content at issue was provided by third-party sellers, not Amazon,” the third-party sellers did not provide Proposition 65 warnings and “[t]hus, if there is liability here, it is predicated entirely on the deficiencies in third-party content on Amazon’s online marketplace.” The trial court described Lee’s claim as seeking to “treat Amazon as the publisher or speaker” of “information provided by another information content provider (i.e., the third-party sellers that provided the product descriptions without a Proposition 65 warning)” and held it would be inconsistent with section 230(c)(1) to impose liability on Amazon for “failing to include a warning on
Amazon views Gentry as “determinative precedent.” In that case, purchasers of what turned out to be forged autographed sports memorabilia alleged eBay violated
We do not see Gentry as dispositive of the issues in the present case. Lee does not suggest Amazon had any obligation to alter the content of the product descriptions provided by the third-party sellers or even to remove the
Contrary to Amazon’s characterization, enforcing its obligations under Proposition 65 does not require it to “monitor, review, and revise” product listings. As both Lee and the Attorney General point out, the “knowingly and intentionally” requirement in
HomeAway.com provides an example, albeit in different factual circumstances. HomeAway and another company whose Web site similarly allows individuals seeking rental accommodations to connect with hosts offering such rentals, challenged a city ordinance prohibiting short-term home rentals except for licensed home-shares in which residents remain on site with guests. (HomeAway.com, supra, 918 F.3d at p. 679.) The plaintiffs argued the ordinance was preempted by section 230 because it required them to monitor and remove third-party content—listings not in compliance with the ordinance. (Id. at p. 682.) The court explained that while the plaintiffs might choose to monitor or remove listings, the ordinance did not require them to do so, only to cross-reference the city’s registry of licensed rentals before processing a requested booking. (Id. at pp. 682–683.)
As our Supreme Court has observed, “not all legal duties owed by Internet intermediaries necessarily treat them as the publishers of third-party content, even when these obligations are in some way associated with their publication of this material. (See, e.g., Barnes, supra, 570 F.3d at p. 1107 [regarding § 230 immunity as inapplicable to a claim of promissory estoppel alleging that an Internet intermediary promised to remove offensive content].)” (Hassell, supra, 5 Cal.5th at pp. 542–543.) Similarly, the Ninth Circuit has said “[i]t is not enough that third-party content is involved” and has “rejected use of a ‘but-for’ test that would provide immunity under the CDA solely because a cause of action would not otherwise have accrued but
Bolger, 53 Cal.App.5th at page 439, a products liability case involving a defective computer battery purchased from a third-party seller on Amazon’s Web site, held section 230 did not shield Amazon from liability because the plaintiff’s strict liability claims “depend on Amazon’s own activities, not its status as a speaker or publisher of content provided by [the third-party seller] for its product listing.” The court first concluded that Amazon’s extensive role in third-party sales, especially where the seller utilizes the FBA program (as in Bolger and for at least one of the products here), supported application of strict liability, describing that role in terms consistent with the evidence in this case. (Bolger, at pp. 452–453; Loomis v. Amazon.com LLC (2021) 63 Cal.App.5th 466 [agreeing with Bolger in case where seller did not use FBA].)42 After discussing two cases from other
Other cases similarly distinguish claims that treat an interactive computer service provider as a publisher from claims that do not, despite being associated with third-party content. In Barnes, supra, 570 F.3d 1096, after a period of failing to respond to the plaintiff’s requests to remove indecent material her former boyfriend posted without her consent on Yahoo.com, the company expressly promised to remove the material, then did not do so. (Id. at pp. 1098–1099.) The Ninth Circuit concluded the plaintiff’s cause of action for “negligent undertaking” was barred by section 230 because it sought to hold Yahoo liable for failing to remove the offending material, which was publishing activity.
The plaintiff’s cause of action for promissory estoppel, however, was not barred. (Barnes, supra, 570 F.3d at p. 1109.) Although the promise underlying this claim involved the same conduct—removing the material from the Web site—the duty allegedly violated “springs from a contract—an enforceable promise—not from any non-contractual conduct or capacity of the defendant.” “Contract liability here would come not from Yahoo’s publishing conduct, but from Yahoo’s manifest intention to be legally obligated to do something, which happens to be removal of material from publication.” (Id. at p. 1107.) The “outwardly manifested intention to create an expectation on the part of another . . . generates a legal duty distinct from the conduct at hand, be it the conduct of a publisher, of a doctor, or of an overzealous uncle.” (Id. at p. 1108.)
Internet Brands, Inc., supra, 824 F.3d 846 provides another illustration of the same point. There, two individuals used the defendant’s Web site, a networking Web site for the modeling industry, to lure the plaintiff to sham
Here, Lee claims Amazon violated Proposition 65 exposing consumers to mercury without warnings through its own conduct. The claims do not attempt to hold Amazon responsible for third-party sellers’ content (except in the sense that Amazon would have been able to disclaim responsibility for providing warnings if the sellers had provided them). As we have discussed, the claims do not require Amazon to modify or remove third-party content but rather to provide a warning where Amazon’s own conduct makes it subject to
The Ninth Circuit cases make another point that is of critical importance here. HomeAway.com emphasized that “[l]ike their brick-and-
If a skin-lightening cream is sold in a brick-and-mortar drug store that was aware the product contained mercury, there is no question that retail seller would have some obligation to provide Proposition 65 warnings—depending, of course, on whether entities further up the distribution chain had provided warnings for the products and, if not, could be held to account. Nothing in the text or purposes of the CDA suggests it should be interpreted to insulate Amazon from responsibilities under Proposition 65 that would apply to a brick-and-mortar purveyor of the same product.
Not only would such an interpretation give Amazon a competitive advantage unintended by Congress in enacting the CDA, but it would be inimical to the purposes of Proposition 65. Amazon makes it possible for sellers who might not be able to place their products in traditional retail stores to reach a vast audience of potential customers. (E.g., Bolger, supra, 53 Cal.App.5th at p. 453 [“The Amazon website . . . enables manufacturers and sellers who have little presence in the United States to sell products to customers here”].) The evidence in this case indicates that mercury-containing skin-lightening products are overwhelmingly likely to have been manufactured outside the United States—unsurprisingly, as FDA regulations prohibit use of mercury as a skin-lightening agent in cosmetics. (
Proposition 65, as we have said, “ ‘is a remedial law, designed to protect the public’ ” which must be construed “ ‘broadly to accomplish that protective purpose.’ ” (Center for Self-Improvement & Community Development v. Lennar Corp., supra, 173 Cal.App.4th at pp. 1550–1551, quoting People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 314.) Moreover, states’ “police powers to protect the health and safety of their citizens . . . are ‘primarily, and historically, . . . matter[s] of local concern.’ ” (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485.) The United States Supreme Court has explained that “[w]hen addressing questions of express or implied pre-emption, we begin our analysis ‘with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ [Citation].” (Altria Group, Inc. v. Good (2008) 555 U.S. 70, 77.) The “strong presumption against displacement of state law . . . applies not only to the existence, but also to the extent, of federal preemption. [Citation.] Because of it, ‘courts should narrowly interpret the scope of Congress’s “intended invalidation of state law” whenever possible.’ [Citation].” (Brown v. Mortensen (2011) 51 Cal.4th 1052, 1064.)
As the Ninth Circuit has explained, Congress intended “to preserve the free-flowing nature of Internet speech and commerce without unduly prejudicing the enforcement of other important state and federal laws. When Congress passed section 230 it didn’t intend to prevent the enforcement of all laws online; rather, it sought to encourage interactive computer services that provide users neutral tools to post content online to police that content without fear that through their ‘good samaritan . . . screening of offensive material,’ [citation], they would become liable for every single message posted by third parties on their website.” (Roommates.com, supra, 521 F.3d at p. 1175, quoting
The text of
DISPOSITION
The judgment is reversed and the matter is remanded for further proceedings in accordance with the views expressed in this opinion.
On remand, if Lee is able to establish all the elements of his claims as to the products purchased from Amazon and tested for mercury content, the trial court shall determine whether the products with different ASINs identified in Lee’s pretrial brief as among the 11 products at issue were in fact the same products as the ones for which samples were tested, and shall determine penalties in accordance with
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Kline, J.*
We concur:
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Richman, Acting P.J.
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Stewart, J.
Lee v. Amazon (A158275)
*Assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Trial Judge: Hon. Robert McGuiness
Attorney for Plaintiff and Appellant Larry Lee: Law Office of Jonathan Weissglass Jonathan Weissglass Greenfire Law Rachel S. Doughty Jessica L. Blome
Attorneys for Amicus Curiae on behalf of Plaintiff and Appellant: Rob Bonta Attorney General of California Dennis A. Ragen Roxanne Carter Deputy Attorneys General
Attorneys for Amicus Curiae As you Sow on behalf of Plaintiff Appellant: Danielle R. Fugere Chelsea J. Linsley
Attorneys for Amicus Curiae Center For Food Safety on behalf of Plaintiff and Appellant: Altshuler Berzon Barbara J. Chisholm P. Casey Pitts
Attorneys for Amici Curiae Black Women for Wellness and the Mercury Policy Project/Tides Center on behalf of Plaintiff and Appellant: Environmental Law Clinic Mills Legal Clinic at Stanford Law School Deborah A. Sivas Molly Loughney Melius
Attorneys for Defendant and Respondent Amazon.com, Inc.: Doll Amir & Eley Gregory L. Doll Brett H. Oberst Jamie O. Kendall Lloyd Vu
Attorneys for Amicus Curiae The Civil Justice Association of California on behalf of Defendant and Respondent: Law Office of Fred. J. Hiestand Fred J. Hiestand
Notes
intentionallyin its definition of
knowingly(OED Online <https://oed.com/view/Entry/104167?redirectedFrom=knowingly#eid> [as of Mar. 11, 2022]); Merriam-Webster‘s Thesaurus lists
intentionallyand
knowingly as synonyms for each other. (Merriam-Webster‘s Thesaurus Online <https://www.merriam-webster.com/thesaurus/intentionally> [as of Mar. 11, 2022]; <https://www.merriam-webster.com/thesaurus/knowingly> [as of Mar. 11, 2022].)
knowinglyis defined by the OED as
[w]ith knowledge or awareness (of what one is doing, of a fact, etc.); consciously, intentionally.(OED Online <https://www.oed.com/view/Entry/104167?redirectedFrom=knowingly#eid> [as of Mar. 11, 2022]) and by Merriam-Webster Unabridged Dictionary (Merriam-Webster) as
with awareness, deliberateness, or intention(Merriam-Webster Dict. Online <https://unabridged.merriam-webster.com/unabridged/knowingly> [as of Mar. 11, 2022]). Black‘s Law Dictionary defines
knowingas
[h]aving or showing awareness or understanding; well-informedand
[d]eliberate; conscious,and
knowinglyas
[i]n such a manner that the actor engaged in prohibited conduct with the knowledge that the social harm that the law was designed to prevent was practically certain to result; deliberately.It explains:
A person who acts purposely wants to cause the social harm, while a person who acts knowingly understands that the social harm will almost certainly be a consequence of the action, but acts with other motives and does not care whether the social harm occurs.(Black‘s Law Dict. supra, p. 1042, col. 2.)
with intention, on purpose(OED Online <https://www.oed.com/view/Entry/97497?redirectedFrom=intentionally#eid> [as of Mar. 11, 2022]) and
in an intentional manner: with intention: purposely(Merriam-Webster Dict. Online <https://unabridged.merriam-webster.com/unabridged/intentionally> [as of Mar. 11, 2022). Black‘s Law Dictionary, supra, page 965, defines
intentionalas
[d]one with the aim of carrying out the act.
knowinglydischarging or releasing listed chemicals into water or land where they probably will pass into a source of drinking water, this statute appears to contemplate liability when the business is aware that the discharge or release it causes contains the listed toxin and is likely to reach a source of drinking water, regardless of whether it intends this result. Health and Safety Code section 25249.5 is less restrictive, requiring warnings but not prohibiting the act that causes exposure to the chemical. In keeping with this lower level of regulation, the statutory requirement is triggered only where the defendant is not only aware but also intends to take the action that results in the exposure—in the case of a consumer product, intends to take the action that moves the product toward the consumer.
‘actual knowledge’ means the retail seller receives information from any reliable source that allows it to identify the specific product or products that cause the consumer product exposureand
[w]here the source of a retail seller‘s knowledge is a notice pursuant to [Health and Safety Code] Section 25249.7(d)(1) of the Act, the retail seller shall not be deemed to have actual knowledge of any consumer product exposure alleged in the notice until five business days after the retail seller receives the notice. The notice must provide sufficient specificity for the retail seller to readily identify the product or products subject to the notice, in accordance with Article 9, section 25903(b)(2)(D).(Regs., § 25600.2, subd. (f)(1), (2).)
at any earlier time,perhaps a reference to evidence such as the RAPEX notices and CDPH notice. It should be obvious that while packaging indicating a listed toxin is an ingredient would supply actual knowledge, absence of such information on product labeling, in and of itself, is far too limited a basis for finding an absence of knowledge, actual or otherwise.
does not establish that an exposure necessarily occurs only from a purchase,Amazon points to statements in the 2016 FSOR which it says explain that
a person who purchases a product is not necessarily exposedand
[i]n some cases, exposure will not occur until the product packaging is opened.
The first of these statements (italicized below) is part of a comment submitted to OEHHA regarding its proposed regulation defining retail seller
(In the definition for ‘retail seller,’ the term, ‘purchasers’ should be changed to ‘consumers,’ both for consistency and to avoid inadvertently including wholesale distributors. Often, the consumer of the product, and thus the individual who is exposed, is not the purchaser.
(2016 FSOR, supra, p. 33.) OEHHA responded that it agreed and had replaced the term purchasers
with consumers.
(Ibid.) Read in context, it is apparent that the point was to avoid language that might be taken as extending the regulation restricting circumstances in which retail sellers are required to provide Proposition 65 warnings to sellers that do not sell directly to consumers, not to suggest that sale to a consumer does not expose the consumer to a listed chemical in the product.
The second statement (italicized below) is from the OEHHA‘s response to a comment that a proposed regulation specifying methods for providing safe harbor consumer product exposure warnings (whether a warning is required on both the immediate container and the outer packaging of a product.
(2016 FSOR, supra, p. 87.) OEHHA responded in the negative, explained that the regulations provided several options for warnings, then stated, [t]he warning should be placed in such a manner as to ensure that it is seen and understood prior to exposure. For example, . . . if a person will be exposed to a listed chemical immediately upon opening a product‘s outer packaging through contact with the product, the warning should be placed on the outer container or wrapper.
(Ibid.) This guidance is obviously directed at those in a position to provide warnings on products and their packaging, such as manufacturers and packagers, to ensure such warnings are not placed where they may be overlooked by the consumer. It does not address the meaning of expose
with respect to a business that sells a product to the consumer.
A product-specific warning provided on a posted sign, shelf tag, or shelf sign, for the consumer product at each point of display of the product;
A product-specific warning provided via any electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the consumer product, without requiring the purchaser to seek out the warning;
A warning on the label that complies with the content requirements in Section 25603(a); and/or
A short-form warning on the label that complies with the content requirements in Section 25603(b)and is in a specified type size. (Regs., § 25602, subd. (a)(2)-(4).)