The 2020 Prop. 65 Clearinghouse convention marked one other 12 months of thought-provoking dialogue on the present state of Proposition 65 laws and litigation. Though the Act is sort of 35 years previous, traits in enforcement litigation and defenses are constantly evolving. The Prop. 65 Clearinghouse does a wonderful job of mixing views from the varied stakeholders and litigants within the discipline.
Among the many panels at this 12 months’s convention, discussing subjects from acrylamide litigation to warnings on marijuana merchandise, was a wonderful and vigorous dialogue on the affirmative protection underneath the compelled speech doctrines of the First Modification. Briefly talked about in that dialogue was whether or not we may even see an emergence of different protections from the Structure invoked as protection to Prop. 65 actions. Due Course of and Commerce Clause have been briefly talked about amongst these different potential areas the place we may even see additional constitutional defenses.
This dialogue dropped at thoughts different areas the place federal regulation might preempt California’s Prop. 65. Specifically, and on the heals of the California Courtroom of Attraction’s August 2020 choice in Bolger v. Amazon, the applicability of the federal Communications Decency Act of 1996. To be clear, Bolger was not a Prop. 65 case. Nevertheless, the choice did briefly contact an space of federal preemption that can be utilized as a protection to Prop. 65 actions introduced towards Amazon and different on-line third-party vendor platforms.
In Bolger, a lady was severely harm following an explosion of a substitute laptop computer battery she bought on Amazon from a third-party vendor. Amazon raised a variety of defenses, together with immunity from legal responsibility underneath title 47 U.S.C. part 230 – a part of the Communications Decency Act (CDA).
The CDA is extraordinarily vital to the free circulate of knowledge on the web because it shields on-line content material platforms from being held liable because the speaker or writer of third-party content material. Plaintiffs pursuing lawsuits primarily based on state regulation “might maintain liable the one that creates or develops illegal [online] content material, however not the interactive laptop service supplier who merely allows that content material to be posted on-line.” (Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. (4th Cir. 2009) 591 F.3d 250, 254; see additionally, HomeAway.com, Inc. v. Metropolis of Santa Monica (ninth Cir. 2019) 918 F.3d 676, 681.)
The Bolger Courtroom discovered that the CDA didn’t shield Amazon from strict legal responsibility for the battery bought on its web site as a result of speech was not the problem. Legal responsibility was not rooted in a failure to adequately warn, for instance. The Courtroom said that Amazon’s legal responsibility within the case didn’t flip whether or not Amazon was categorised as a speaker/writer of content material on amazon.com that had been offered by the third-party vendor. As an alternative, Amazon was discovered liable in Bolger due to its function within the transaction itself that was extra akin to that of a “typical retailer” and the Courtroom subjected Amazon to strict legal responsibility as it might have for another “typical retailer.” (In a future CMBG3 publish, we might be discussing the ramifications of that retailer label, in addition to the break up amongst courts across the nation on the problem.)
From a Prop. 65 perspective, the take-away from seemingly unrelated instances like Bolger and HomeAway.com is that CDA immunity might prolong to lawsuits the place a plaintiff is looking for to pursue a state regulation explanation for motion (i.e., enforcement of California’s Prop. 65) towards an internet platform for content material offered by one other. In different phrases, the CDA may defend an organization like Amazon from content-based lawsuits stemming from the alleged absence or inadequacy of a Prop. 65 warning that the third-party vendor both uncared for to publish on the product web page, or failed to supply the correct warning underneath Prop. 65.
For the third-party vendor, not solely ought to this be a reminder to evaluate your obligations underneath laws like Prop. 65, but additionally to learn your vendor agreements with Amazon, Etsy, Walmart, Shopify and the like. To maintain the theme on Amazon, the Amazon Enterprise Options Settlement contains indemnity provisions and regulatory compliance provisions (that particularly name out Prop. 65 compliance) that each vendor ought to perceive.
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