Amazon is getting hauled into court for not recalling dangerous products the right way

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Since 2019, Amazon has sold nearly 400,000 hair dryers that could shock someone if they fell into a pool of water, 24,000 carbon monoxide detectors that didn’t actually detect carbon monoxide, and an unspecified number of “children’s sleepwear garments” that didn’t meet flammability requirements, according to the US Consumer Product Safety Commission (CPSC).

Now, the US safety regulator wants to force Amazon to recall those products. This past week, it sued the company in a case that could be the latest to hold Amazon accountable for products offered by its third-party sellers. But here’s the thing: Amazon has already recalled these specific products. They’re no longer for sale.

Amazon says, and the CPSC acknowledges, that the giant retailer has already stopped selling these products, already notified their buyers, and already handed out refunds.

Here’s the initial statement Amazon provided to The Verge:

Customer safety is a top priority and we take prompt action to protect customers when we are aware of a safety concern. As the CPSC’s own complaint acknowledges, for the vast majority of the products in question, Amazon already immediately removed the products from our store, notified customers about potential safety concerns, advised customers to destroy the products, and provided customers with full refunds. For the remaining few products in question, the CPSC did not provide Amazon with enough information for us to take action and despite our requests, CPSC has remained unresponsive. Amazon has an industry-leading recalls program and we have further offered to expand our capabilities to handle recalls for all products sold in our store, regardless of whether those products were sold or fulfilled by Amazon or third-party sellers. We are unclear as to why the CPSC has rejected that offer or why they have filed a complaint seeking to force us to take actions almost entirely duplicative of those we’ve already taken.

What’s actually going on here? We spoke to the CPSC, and it claims there’s a few big problems with the way Amazon’s handling the issue. Primarily, that the CPSC would have to take Amazon’s word that the recall is being handled and that these dangerous products are actually being destroyed.

In the statement, Amazon says that the CPSC rejected its offer to work together on this issue, and it seems like that might be true — because Amazon’s offer was a “proposed recalls pledge” that would let online marketplaces handle recalls themselves. Here’s the proposal Amazon sent the CPSC on May 6th:

The CPSC originally suggested to us that pledge wasn’t a legally binding agreement, either — it might have to take Amazon’s word that it would, for instance, provide regular reports about the progress of a recall so the CPSC can follow up. If Amazon didn’t adequately tell customers how to destroy dangerous products or how to ship them back at no charge, the CPSC might not be able to take action.

Amazon suggests that’s not true, though. “Amazon proposed an agreement that would be legally binding, and that was developed and agreed upon with the CPSC staff,” it tells The Verge. The retailer says it worked “hand-in-hand” with the CPSC through this entire process, used a recall template that “we discussed and agreed upon with the CPSC staff,” and suggests it doesn’t understand why the CPSC changed its mind.

Neither Amazon nor the CPSC would let The Verge see a copy of their proposed agreement, but Amazon did give us copies of the recall notices it sent to customers. One example:

Amazon says there’s a simple reason you don’t see any mention of returns: “Amazon did not require the return of these products before issuing a refund because CPSC had not asked us to and because such a step is unusual for recalls of these product types,” Amazon tells The Verge.

There are bigger things at stake than the recalls of these specific products, though. CPSC’s move is also about finding the authority to force recalls on broad online seller marketplaces like Amazon to begin with, marketplaces which weren’t around at the time the laws were written — that way, it wouldn’t always need to rely on Amazon being willing to comply. CPSC acting chairman Robert Adler hints at this difficulty in a statement (PDF) issued alongside the complaint: “for every product which CPSC determines a recall is necessary, a lengthy negotiation must first take place about the threshold question of whether that sales platform is even subject to our laws.”

The CPSC says its existing statute gives it legal authority when it comes to importers, distributors and manufacturers, and it’s now arguing the way Amazon handles its “Fulfilled by Amazon” products clearly makes it a distributor under the law.

“We are seeking Amazon to be responsible for the ‘fulfilled by Amazon’ products on their site; Amazon does not see themselves legally responsible for these products. We assert Amazon has legal responsibility as a distributor for the safety of these products,” the CPSC tells The Verge, adding “We are eager to collaborate with them on details of a recall.”

Amazon, of course, doesn’t want to be categorized as a distributor:

We disagree with CPSC’s assertion that we are a distributor under this statute, and our perspective was reinforced by Chairman Adler’s statement. However, more importantly, Amazon has always believed that we have an obligation to our customers to provide the safest shopping experience. This is why Amazon has messaged customers and covered the cost of refunds when selling partners failed to engage with regulators about recalls. We did this for the products noted in the lawsuit, and worked with CPSC staff to finalize an agreement that would establish a new-norm for recalls of third-party products. We are unclear as to why the CPSC Commission rejected that offer, particularly as its staff worked hand-in-hand with us to develop it.

If this does get dragged out in the courts, the CPSC says it might take many years to conclude, with previous forced recalls taking five to seven years on average. The first step is getting the case in front of an administrative law judge (of which the CPSC says it doesn’t have any of its own), after which Amazon may have several opportunities to appeal, first to the CPSC itself and then in the federal courts.

You can read the CPSC’s full complaint against Amazon below.

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