It started in 2014, when a California-based civil enforcer Larry Lee found dangerous levels of mercury in skin-lightening creams sold on Amazon.
Exported mercury, a liquid metal, is already banned in the U.S. because of its dangerous effects on the body and the environment, but the laws are even stricter in California. The state’s Safe Drinking Water and Toxic Enforcement Act (also called Proposition 65) requires that companies label products that contain significant amounts of chemicals on its list of hazardous substances. Amazon had no such label on the skin creams, which often contain various chemicals that can cause birth defects, kidney problems, and scarring.
Lee filed a 60-day notice, a warning to Amazon to label the product. When the company didn’t respond, he followed up with a lawsuit the next year. Word caught on over time, and 51 public interest organizations issued a public letter to Amazon in 2018, demanding that the online marketplace cease the sales of the lightening creams. But almost four years after Lee’s complaint, the Alameda County Superior Court is still poised to rule in favor of Amazon, and against the consumers and advocacy groups, establishing yet another precedent that would allow the company to operate without regulation.
“Amazon has been fighting in court to say it has no responsibility to its consumers, because it’s merely providing a platform for the products, similar to Google,” said Danielle Fugere, a lawyer and advocate with As You Sow, a consumer protection group that filed a second lawsuit against Amazon in 2017 after Lee. “But these products wouldn’t have otherwise been accessible, that’s the problem.”
The Alameda County Superior Court is still poised to rule in favor of Amazon, and against consumers.
The ongoing case, which will likely reach a conclusion at the beginning of July, is just a sliver of the consumer backlash against Amazon. There are 1,005 60-day notices in California currently filed against Amazon for selling toxic products that don’t comply with Proposition 65, said Sam Delson, the deputy director for external and legislative affairs at California’s Office of Environmental Health Hazard Assessment. And the online seller still hasn't added any of the required cautionary messaging.
In 2016, California updated Proposition 65 to include companies like Amazon. The new addendum says that companies selling toxic products need to label them with the word “warning” prominently displayed on the site. “It’s a right-to-know law,” Delson said. “Prop 65 does not ban or restrict the sales of any product, but it provides warnings and information that people can use to make their own decisions.”
Late last year, Amazon took some baby steps towards addressing the issue, including adding a page to the site that describes Proposition 65, and making a commitment to put warnings on Amazon-brand products if they might be harmful to consumers. The company said it removes relevant toxic products on its sites. “Selling partners are required to comply with all relevant laws and regulations when listing items for sale in our stores,” an Amazon spokesperson said in an email about its broader product policy. But currently, critics said the products remain in the marketplace, where third-party companies sell items with no proper warning or listed ingredients, including the skin-lightening creams.
To make matters worse, people of color are most likely to use skin-lightening creams—and are already more vulnerable to health issues related to toxicity in their products and environments. “[The creams] are really based on the racism around skin tone, and colorism,” said Sonya Lunder, the senior toxics advisor for the Sierra Club’s gender, equity and environment program. “They’re harsh and toxic. And there’s huge concern that these products are being used by women who are recent immigrants.”
Lunder said that while cities and non-profits battled the issue on the ground, conducting raids to take toxic products off store shelves, their availability on Amazon thwarted any progress. The U.S. already allows more toxic products on shelves than its European counterparts, she said, which threatens public health. Especially because, Lunder said, even the products that claim to be free of unhealthy chemicals like formaldehyde often contain it anyway.
For now, Amazon doesn’t seem to be taking any more steps to protect its customers, and continues to battle the numerous concerns about its role in retail. For a company that has contracted with ICE, exposed the privacy of children, and retained unsafe workplace practices, this isn’t completely surprising. But critics say that it is, in many cases, illegal.
“This is Amazon,” Fugere said. “They can still, and they still do, make money off of every sale.”