Lee v. Amazon.com, Inc.

• Citation: 291 Cal.Rptr.3d 332,76 Cal.App.5th 200
• Decision Date: 11 March 2022
• Docket Number: A158275
• Parties: Larry LEE, Plaintiff and Appellant, v. AMAZON.COM, INC., Defendant and Respondent.
• Court: California Court of Appeals

76 Cal.App.5th 200

291 Cal.Rptr.3d 332

Larry LEE, Plaintiff and Appellant,

v.AMAZON.COM, INC., Defendant and Respondent.

A158275

Court of Appeal, First District, Division 2, California.

Filed March 11, 2022

As Modified on Denial of Rehearing April 8, 2022

Attorney for Plaintiff and Appellant Larry Lee: Law Office of Jonathan Weissglass, Jonathan Weissglass, Oakland, Greenfire Law, Rachel S. Doughty, Jessica L. Blome, Berkeley.

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, San Francisco, Chelsea J. Linsley.

Attorneys for Amicus Curiae Center For Food Safety on behalf of Plaintiff and Appellant: Altshuler Berzon, Barbara J. Chisholm, San Francisco, P. Casey Pitts, San Francisco.

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, Los Angeles.

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, Sacramento.

Kline, J.^*

Under legislation enacted as Proposition 65 in 1986, businesses are prohibited from knowingly and intentionally exposing any individual to certain chemicals without first providing a warning. Lee seeks to hold Amazon.com, Inc. (Amazon) accountable for offering on its Web site, without warnings, certain skin-lightening face creams sold by third parties and alleged to contain mercury. The trial court concluded that Amazon is immune from liability under the federal Communications Decency Act (CDA) and also that Lee failed to establish several elements of his case under Proposition 65.

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.

We agree with Lee and, therefore, will reverse and remand for further proceedings.¹

BACKGROUND

California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Act) ( Health & Saf. Code, § 25249.5 et seq. ), adopted by voter initiative in 1986 and commonly known as Proposition 65, provides, "No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer

or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10." ( Health & Saf. Code, § 25249.6.) Mercury and mercury compounds were listed by the state as reproductive toxins under Proposition 65 in 1990. ( Cal. Code. Regs., tit. 27,² § 27001, subd. (c) ; see Health & Saf. Code, § 25249.8.)³

Cosmetics containing one ppm (0.0001 percent) or more of mercury are prohibited under federal law. ( 21 U.S.C. § 331(a) – (c) ; 21 C.F.R. § 700.13(d)(2)(i).)⁴ According to the FDA, "[t]he toxicity of mercury compounds is extensively documented in scientific literature.... Mercury is absorbed from topical application and is accumulated in the body, giving rise to numerous adverse effects.... [C]hronic use of mercury-containing skin-bleaching preparations has resulted in the accumulation of mercury in the body and the occurrence of severe reactions." ( 21 C.F.R. § 700.13(b).)

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 "ASIN."⁵ His pretrial brief subsequently reduced the list of products at issue to 11, identified by ASIN and name or description: Three by Faiza, one by Face Fresh, one by Monsepa, and six by Meiyong.⁶

Lee had laboratory tests performed on samples of these products, 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. The Monsepa sample tested was purchased from aztopselstore.com and appears to be the same as the Monsepa product available from Amazon; the other four samples tested were from products purchased from Amazon.

Several samples of Monsepa creams (not purchased from Amazon) had previously been tested for California agencies: Tests performed for the California Department of Public Health (CDPH) found 8,900 ppm mercury in a sample of Monsepa Express Peeling cream tested in May 2013, 13,000 ppm mercury in a sample of Monsepa Express Peeling cream tested in December 2013, and a 2013 test for the California Department of Justice found 12,000 ppm mercury in a sample of Monsepa Express Peeling cream and 20,000 ppm mercury in a sample of Monsepa Whitening Peel.

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 ( Health & Saf. Code, § 25249.7, subd. (d) ) dated May 22, 2014. He filed his complaint for civil penalties and injunctive relief on August 25, 2014.

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 ( 47 U.S.C. § 230 ).⁷ The court also found that while Amazon could have a duty to warn under Proposition 65 for third-party sales of the products at issue, Lee failed to prove each element of his claim under Proposition 65—specifically, that Lee did not prove each of the products at issue contained mercury, that test results finding mercury in a unit of the products at issue should be generalized to other units of that product or similar products, that the creams sold on Amazon's Web site were actually used by consumers, and that Amazon had actual knowledge the products contained mercury at the time they were purchased without a Proposition 65 warning.

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 adverse effects in rodents, which tend to be less sensitive than humans to many neurologic and reproductive effects.

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 public health issues with skin-whitening creams involve creams imported from certain countries in Asia, Mexico, and in a few cases Africa; Lee's expert witness on cosmetic chemistry and Proposition 65 warnings, David Steinberg,¹¹ testified that in his experience most skin-bleaching products containing mercury were made in Pakistan. Both testified that the claims made on listings on Amazon for the products Lee had tested—referring to removing dark spots, whitening skin and treating acne¹² —were "red flags" indicating the product was for skin bleaching and might contain mercury.¹³ This was particularly the case where a product claimed to both whiten skin and treat acne,...