Showing posts with label Standards. Show all posts
Showing posts with label Standards. Show all posts

Thursday, July 1, 2021

Special Documents Used in Exporting

 

Special Documents Used in Exporting

International Trade Administration

Republication

https://www.trade.gov/special-documents

 

Documents not falling under the category of “commonly-used” (e.g., commercial invoice, bill of lading, packing list) are covered here. The country of import may require special documents for a variety of reasons. Certain products may require certificates to show cleanliness, compliance with standards, safety, and health. Other products may require pre-shipment inspections before departing the country of export or be qualified for a free trade agreements tariff rate. Asking the foreign buyer at the beginning of the transaction which documents will be needed for goods to clear customs in the country of import is a best practice.

 

Certificates of Origin

Certificates of origin (COO) may be required to comply with the requirements of foreign customs (i.e., country of importation), for letters of credit, or simply at the request of the buyer. There are two types of COOs: One type is known as “generic” or “non-preferential,” which means that the country of origin of the goods stated on the document does not qualify the goods for any preferential treatment with the country on the receiving end. A second type of certificate may be required to obtain a free trade agreement (FTA) preferential tariff rate.

 

Generic Certificates of Origin  

A generic COO is one of the most commonly requested documents. Here is what you need to know when to use, how to certify, and where to obtain such a COO to help make for a smooth export transaction:  

  • A generic COO needs to be certified by an outside entity such as a local Chamber of Commerce. This does not apply to FTA certification (the documents need to be self-Certified). 
  • The COO may be required by some countries for all or only certain products. In many cases, a statement of origin printed on company letterhead will suffice. The exporter should verify whether a COO is required with the buyer and/or an experienced shipper/customs broker/freight forwarder. 
  • For textile products, an importing country may require a certificate of origin issued by the manufacturer.  
  • The number of required copies and language may vary from country to country.  

Note: Some countries may require that a COO be notarized, certified by a chamber of commerce, and legalized by the commercial section of the consulate of the destination country. For Middle Eastern countries, the National U.S.-Arab Chamber of Commerce provides notarization and certification services.   

Where to Obtain a Generic Certificate of Origin 

  • Generic COOs (for goods that don’t qualify for free trade agreements) may be obtained a commercial vendor, broker or freight forwarder.
  • An electronic version of a generic COO may be obtained from the US Council for International Business for U.S. origin or non-U.S. origin products. For the latter, an additional proof of origin may be required.    
  • The eCOOs can save time and money, bypassing the delay and expense of employing messengers to obtain certification. USICB certificates can be printed from any computer.

 

FTA Certificate of Origin

  • Other COOs may be required to obtain FTA preferential tariff rates. These certify that goods listed on the document are eligible for either duty-free or reduced tariffs because the country of importation extends these privileges to the country of origin. 
  • There is a specific NAFTA certificate (CBP 434) for qualifying shipments to Canada and Mexico. Many other FTA partners can accept declarative statements that contain specific data elements including information stating how the product qualifies for an FTA. For more information, visit FTA Certificates of Origin.                                                                                                                                                                                                                                                                            

Export Documentation for Shipments of Specific Goods 

Additional certificates for import clearance in foreign countries are based on the products and various reasons for certification or compliance. Again, ask your importer and verify with another dependable source such as your freight forwarder or customs broker. Keep in mind that there is some overlapping of categories and products in the below listings, and that your product may require documentation from more than one category.

Certificates for Food, Drugs, Cosmetics, and Medical Devices 

U.S. Food & Drug Administration (FDA) can issue special certificates depending on the product to be exported:

  • Certificate of Free Sale - for food, including dietary supplements, and cosmetic products that may be legally marketed in the United States.
  • Certificate to Foreign Government - for export of human drugs and biologics, animal drugs, and devices that can be legally marketed in the United States.
  • Certificate of Exportability - for conventional foods, food additives, food contact substances, and infant formula products that cannot be legally marketed in the United States but meet certain FDA standards and may be legally exported.
  • Certificate for Cosmetics - for products that meet the definition of a cosmetic.   
  • Health certificate for collagen and gelatin products - intended for export to the European Union (EU) and specified risk materials certificates for collagen and gelatin products intended for export to non-EU countries.  
  • Exporting of Medical Devices - may require submission of an export certificate often required by the foreign government or buyer for products regulated by the FDA. This states that the exported device - including radiation emitting electronic products that are medical devices — meets certain specified U.S. requirements. These requirements depend on the marketing status of the device: legally marketed in the U.S. or cannot be legally marketed in the U.S (unapproved for U.S. market). The FDA’s Center for Devices and Radiological Health (CDRH) issues export certificates for medical devices. To obtain an export certificate, submit your request to CDRH which will approve of deny the request. 

More detailed list of export documents issued by FDA, contacts, how to apply, and FAQs, can be found on FDA’s website.                                                                                

Other Food-Related (including Chemicals and Pharmaceuticals)

  • Ingredients Certificate - may be requested for food products with labels that are inadequate or incomplete. The certificate may be issued by the manufacturer. It must give a description of the product, including contents and percentage of each ingredient; chemical data; microbiological standards; storage instructions; shelf life; and date of manufacture. If animal fats are used, the certificate must state the type of fat used, and that the product contains no pork, artificial pork flavor, or pork fat. All foodstuffs are subject to analysis by foreign Ministry of Health laboratories to establish fitness for use. 
  • Certificate of Analysis - attests that goods have undergone a particular type of testing with specified results. A certificate of analysis may be needed by the parties in the transaction or required by the country of importation. This document is usually required for food products, wines and spirits, chemicals and pharmaceuticals. This certificate can be issued by a certification authority or by the exporter if the buyer agrees. Certificates of analysis may be obtained from an accredited laboratory.
  • Halal Certificate - guarantees products and services aimed for the Muslim population meet requirements of Islamic law, and therefore suitable for consumption in Muslim-majority countries. This certificate states that the fresh or frozen meat or poultry products were slaughtered in accordance with Islamic law, and certification by an appropriate chamber, and legalization by the consulate of the destination country are usually required. Information on the certification process and forms can be found on American Halal Foundation’s website

 

Dangerous and Hazardous Goods

  • Dangerous Goods Certificate - exports classified as dangerous goods submitted for handling by air carriers and air-freight forwarders, need to be accompanied by a Shipper’s Declaration for Dangerous Goods; a requirement of the International Air Transport Association (IATA). The exporter is responsible for the form’s accuracy, and ensuring that IATA requirements related to packaging, marking, and other information have been met. Note: For shipments of dangerous goods, it is critical to identify goods by proper name and comply with packaging and labeling requirements, which vary depending upon type of product shipped and country of destination. For more information, visit the International Air Transportation Association or Department of Transportation - HAZMAT websites. For ocean exports, hazardous material regulations are contained in the International Maritime Dangerous Goods regulations.
  • Safety Data Sheet (formerly called MSDS) - documents health and safety information about products, substances or chemicals classified as hazardous substances or dangerous goods. SDS is required to follow various country/region regulations, including European Union REACH (Regulation on Registration, Evaluation, Authorization and Restriction of Chemicals - Regulation 2006/1907/EC), and CLP (Classification, Labeling and Packing - Regulation 2008/1272/EC). SDS also follows the Globally Harmonized System, and Occupational Safety and Health Administration standards. Both SDS and a Shippers Letter of Instructions are required by the broker or freight forwarder responsible for arranging shipment of the goods. This helps ensure proper safety measures are taken in the handling of goods, and that vessel safety limits are not breached. SDS information also helps determine additional shipping costs associated with sending hazardous materials. Companies such as Intertek, SGS or Veritas can help manufacturers and exporters prepare or update Safety Data Sheets. Manufacturers, importers, distributors, and downstream users are responsible for keeping SDS current, and in compliance with relevant regulations.  
  • Radiation Certificate - may be required in some countries, including Saudi Arabia, for some plant and animal imports. The certificate states that the products are not contaminated by radioactivity
  • Chemicals - for shipments of chemical substances or mixtures subject to section 12(b) of the Toxic Substances Control Act (TSCA), exporters need to notify the U.S. Environmental Protection Agency (EPA). EPA, in turn, will provide information about the exported chemical and its related regulatory actions to the importing government. Learn about TSCA exporting requirements

Note: Exporters of manifested hazardous wastes, spent/used lead-acid batteries, universal wastes and cathode ray tubes for recycling should now be transitioning to an electronic border process using the Automated Export System (AESDirect).

 

Health and Phytosanitary (Animals and Plants) 

  • Export Health Certificates - cover shipment of live animals, plants, and animal products such as veterinary biologics as required from the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS). Each country establishes its own rules for entry of animals from the United States, and some countries require a specific health certificate they have developed. Many requirements may be found on APHIS’ International Animal Product Export Regulations website. APHIS works with other federal agencies, including Centers for Disease Control and Prevention, Customs and Border Protection, Fish and Wildlife Service, FDA, and U.S. Department of Agriculture’s Food Safety and Inspection Service to facilitate the health certification verification process. 
  • Phytosanitary certificates - attests to the condition of plants or plant products, and verifies product is free from specified epidemics and/or agricultural diseases. They assist exporters in meeting the plant quarantine requirements of the importing country. Phytosanitary certificates are issued by an authorized certification official (federal, state, or county - California county only). APHIS plant protection and quarantine, provides phytosanitary certification of both U.S. and foreign-origin agricultural commodities. Additional information and forms are available from APHIS.  

 

Fishery Products

  • Export Certification of Fishery Products - The National Oceanic & Atmospheric Administration (NOAA) has regulatory and stewardship authority for fisheries, marine sanctuaries, marine mammals, threatened and endangered species, and habitat conservation. Export certification of fishery products is done by several agencies such as U.S. Department of Agriculture’s  Animal and Plant Health Inspection Service (APHIS) or U.S. Food and Drug Administration, depending on the product, by-product and uses. See decision-making chart for guidance on NOAA’s website.

 

Wood Packaging and Fumigation

  • ISPM 15 (Wood Packaging) Marking.- are International Standards for Phytosanitary Measures Guidelines for Regulating Wood Packaging Material in International Trade. ISPM 15 apply to coniferous and non-coniferous hardwood used as raw wood packaging material. It exempts wood packaging made of manufactured wood-based products such as plywood and veneer, reconstituted wood products; products created using glue, heat and pressure or combination of both. Under ISPM 15, no specific certification is required indicating that wooden packaging has been heat or chemical treated. Instead of certification, a special stamp is applied to the packaging signifying an appropriate treatment occurred. For ISPM 15 requirements and compliance information, visit the American Lumber Standard Committee, and National Wooden Pallet and Container Association websites.  
  • Fumigation Certificate - certifies that any wooden-packing materials (e.g., pallets, crates) OR an entire cargo has been fumigated. If it applies to cargo (e.g. used textiles), then the certificate serves as proof that the cargo shipping out of the U.S. has been fumigated or sterilized. It contains details of applied type of treatment. A certified fumigator needs to complete the fumigation certification of cargo exported from the USA prior cargo delivery to an ocean freight carrier’s terminal (Container Freight Station). The certificate may also be required for quarantine clearance of any goods of plant or animal origin. Information on treatment of wood, requirements for plant exports, animal exports, certifications and fees can be found on U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS).   

 

Pre-Shipment Inspections, Insurance and Weight

·       Pre-Shipment Inspections - are undertaken by governments in a number of countries, which have have contracted with international inspection companies to verify the quantity, quality, and price of shipments imported into their countries. They want to ensure that the price charged by the exporter reflects the true value of the goods, to prevent substandard goods from entering the country, and to deflect attempts to avoid payment of customs duties. Requirements for pre-shipment inspection are normally spelled out in letter-of-credit or other documentary requirements. Inspection companies include Bureau VeritasSGS and Intertek. Although the importer is generally responsible for arranging pre-shipment inspection, the exporter must make the good available for inspection in the country of origin. Requirements for pre-shipment inspections are sometimes spelled out in letters of credit or other documents.   

  • Insurance Certificate - assures the consignee that insurance will cover loss and/or damage to the cargo during transit. These can be obtained from your freight forwarder or insurance carrier. Note: an airway bill can serve as an insurance certificate for a shipment by air. Some countries may require certification or notification. Also, If presenting documents under a letter of credit, you can present an insurance policy instead of an insurance certificate. But you cannot present an insurance certificate instead of an insurance policy under a letter of credit.   
  • Weight Certificate - or a certificate of weight, is issued by U.S. Customs and certifies gross weight of the exported goods.  

·       Other (Product-Specific) Certificates - applies to shaving brushes and articles made of raw hair must be accompanied by a recognized official certificate showing the consignment to be free from anthrax germs. Used clothing requires a disinfection certificate. Grain requires a fumigation certificate, and grain and seeds require a certificate of weight. Many Middle Eastern countries require special certificates for imports of animal fodder additives, livestock, pets and horses.

 

Other Export-Related Documents 

  • Consular Invoice - are required in some countries. A consular invoice describes the shipment of goods, and shows information such as the consignor, consignee, and value of the shipment. If required, copies are available from the destination country’s embassy or consulate in the United States. The cost for this documentation can be significant, and should be discussed with the buyer. 
  • Canada Customs Invoice - is not required by regulation, but this customs invoice is a preferred document by Canadian Customs and customs brokers. It is issued for dutiable and taxable exports exceeding 2,500 Canadian dollars. Commercial invoices or other documents validating information provided on the invoices can be used to support the declared value of commercial goods entering Canada if 1) the value for duty does not exceed CAD$2,500; 2) the value of Canadian goods being returned has been increased, but does not exceed CAD$2,500; and 3) the goods qualify for unconditional duty-free entry (not including cases where entry is contingent on end use), regardless of the selling price. Details and the form can be found here
  • Dock and Warehouse Receipts - is used to transfer accountability when the export item is moved by the domestic carrier to the port of embarkation, and delivered to the ship line for export. 
  • Import Licenses - are the importer’s responsibility, and can vary depending upon destination and product. However, including a copy of an import license with the rest of your documentation may in some cases, help avoid problems with customs in the destination country.  
  • Shipper’s Letter of Instruction - is issued by the exporter to the freight forwarder, and includes shipping instructions for air or ocean shipment.   

 

Temporary Shipment Documents 

  • ATA Carnet/Temporary Shipment Certificate - otherwise known as a “merchandise passport,” an ATA Carnet is a document that facilitates temporary importation of products into foreign countries. It eliminates tariffs and value-added taxes (VAT) or the posting of a security deposit normally required at the time of importation. Apply for an ATA Carnet
  • Customs Certificate of Registration - may be used (often in conjunction with a temporary import bond or ATA Carnet for goods that are leaving the United States on a temporary basis for alteration, repair, replacement and processing). Form 4455
  • Transporting Goods by Truck to Canada - an application to transact bonded carrier and forwarding operation, Form E370, is required to bring goods over the border to Canada when not already cleared through Customs at the border. 

 

For More Country-Specific Information 

Additional information on shipping documentation for a particular trading partner is included in the Country Commercial Guides prepared by our in-country trade exports at U.S. embassies abroad. Each guide includes chapters on how to do business with a particular country. Among the chapters are ”Selling U.S. Goods and Services,” and ”Customs Regulations and Standards” section which highlights the requirements and documentation for a particular country of interest. See an example for shipment to China.

 

Monday, April 26, 2021

California Court of Appeal, Loomis v. Amazon.com LLC, Docket No. B297995

 

E-Commerce

Strict Products Liability

Distribution Agreement

When the Defendant Falls Outside the Vertical Chain of Distribution: Marketing Enterprise Theory or Stream of Commerce Approach

Amazon

Consumer Law

Punitive Damages

Standards: Underwriter’s Laboratories

California Law

 

Kisha Loomis brought suit against Amazon.com LLC (Amazon) for injuries she suffered from an allegedly defective hoverboard. The hoverboard was sold by a third party seller named TurnUpUp through the Amazon website. The trial court granted summary judgment in favor of Amazon. The primary issue on appeal is whether Amazon may be held strictly liable for Loomis’s injuries from the defective product. Recently, the Fourth District addressed this issue as a matter of first impression in Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431 (Bolger), review denied November 18, 2020. Bolger held Amazon “is an ‘integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.’ ” (Id. at p. 453.) Our own review of California law on strict products liability persuades us that Bolger was correctly decided and that strict liability may attach under the circumstances of this case. We reverse and remand with directions.

 

Where Amazon is the seller of a product, it is identified as the seller on the product detail page, and it sources the product, sets the price, and holds title to it. This case does not involve an Amazon-listed product. Where a third party is the seller, it is identified as such on the product detail page and again on the order confirmation page before the user places the order. The third party sources the product, sets the price, and holds title to it.

 

Some third party sellers utilize Fulfillment by Amazon (FBA) services, which allow the seller to store its inventory in an Amazon warehouse. If a product is sold under the FBA, Amazon packages and ships the product to the purchaser. TurnUpUp did not elect to utilize the FBA services.

 

At issue in this appeal are Loomis’s strict and negligent product liability claims.

 

B. The Doctrine of Strict Products Liability in California

Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62 (Greenman) established the doctrine of strict products liability when it held “a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” “The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” (Id. at p. 63).

 

The California Supreme Court extended the doctrine to retailers in Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256 (Vandermark), reasoning, “Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products. [Citation.] In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff. In other cases the retailer himself may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end; the retailer’s strict liability thus serves as an added incentive to safety. Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship.” (Id. at pp. 262-263).

 

California courts must consider the policies underlying the doctrine to determine whether to extend strict liability in a particular circumstance. (Anderson v. Owens–Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995 (Anderson); O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 362–363 (O’Neil).) The public policies articulated in Greenman and Vandermark that form the foundation for the application of strict liability are the following: (1) whether Amazon may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end, (2) whether Amazon may be the only member in the distribution chain reasonably available to the injured plaintiff, and (3) whether Amazon is in a position to adjust the costs of compensating the injured plaintiff amongst various members in the distribution chain. (Vandermark, supra, 61 Cal.2d at pp. 262-263).

 

Applying these policy considerations, courts have extended strict products liability to entities within the chain of distribution, including bailors and lessors (Price v. Shell Oil Company (1970) 2 Cal.3d 245, 248); wholesalers and distributors (Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 252- 253; Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 52 (Canifax)); and sellers of mass-produced homes (Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 227). Courts have found these defendants were responsible for passing the product down the line to the consumer, had the ability to affect product safety by exerting pressure on the manufacturer, and were able to bear the cost of compensating for injuries. (Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1535 (Arriaga).) Courts, however, have declined to extend the doctrine to hotel proprietors (Peterson v. Superior Court (1995) 10 Cal.4th 1185); sellers of used products (Wilkinson v. Hicks (1981) 126 Cal.App.3d 515); and auctioneers (Tauber–Arons Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268 (Tauber-Arons)), who were found to have little to no relationship with the manufacturer and thus lacked the ability to affect product safety.

 

A consumer injured by a defective product “may now sue ‘any business entity in the chain of production and marketing, from the original manufacturer down through the distributor and wholesaler to the retailer; liability of all such defendants is joint and several.’ ” (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 628.) The purpose for this approach “is to extend liability to all those engaged in the overall producing and marketing enterprise who should bear the social cost of the marketing of defective products.” (Kaminski v. Western MacArthur Co. (1985) 175 Cal.App.3d 445, 455-456).

 

“The strict liability doctrine derives from judicially perceived public policy considerations, i.e., enhancing product safety, maximizing protection to the injured plaintiff, and apportioning costs among the defendants. [Citations.] Where these policy justifications are not applicable, the courts have refused to hold the defendant strictly liable even if that defendant could technically be viewed as a ‘ “link in the chain” ’ in getting the product to the consumer market. [Citation.] In other words, the facts must establish a sufficient causative relationship or connection between the defendant and the product so as to satisfy the policies underlying the strict liability doctrine.” (Arriaga, supra, 167 Cal.App.4th at p. 1535).

 

The court in Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762 (Bay Summit), set forth three factors to determine whether such a causative relationship or connection exists when the defendant falls outside the vertical chain of distribution. Under the marketing enterprise theory or stream of commerce approach, the plaintiff must show: “(1) the defendant received a direct financial benefit from its activities and from the sale of the product; (2) the defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and (3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process.” (Id. at p.776; Kasel v. Remington Arms Co. (1972) 24 Cal.App.3d 711 (Kasel)).

 

(…) Lastly, the court found the federal CDA did not shield Amazon from strict liability because liability was based on Amazon’s own conduct, not the content of the seller’s product listing. (Bolger, supra, 53 Cal.App.5th at p. 465).

 

(…) We are persuaded that Amazon’s own business practices make it a direct link in the vertical chain of distribution under California’s strict liability doctrine.

 

(…) These actions – 1) interacting with the customer, 2) taking the order, 3) processing the order to the third party seller, 4) collecting the money, and 5) being paid a percentage of the sale – are consistent with a retailer or a distributor of consumer goods.

 

Although we conclude Amazon is a link in the vertical chain of distribution, we nevertheless recognize e-commerce may not neatly fit into a traditional sales structure. The stream of commerce approach or market enterprise theory offers an alternative basis for strict liability.

 

“Under the stream-of-commerce approach to strict liability no precise legal relationship to the member of the enterprise causing the defect to be manufactured or to the member most closely connected with the customer is required before the courts will impose strict liability.

 

It is the defendant’s participatory connection, for his personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demand for and reliance upon the product (and not the defendant’s legal relationship (such as agency) with the manufacturer or other entities involved in the manufacturing- marketing system) which calls for imposition of strict liability. [Citation.]” (Kasel , supra, 24 Cal.App.3d at p. 725.) Thus, a defendant may be strictly liable under the stream of commerce approach if: “(1) the defendant received a direct financial benefit from its activities and from the sale of the product; (2) the defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and (3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process.” (Bay Summit, supra, 51 Cal.App.4th at p. 778).

 

(…) For example, the BSA allows Amazon to require certification of products it lists from the Underwriter’s Laboratories, which, among other things, establishes standards for manufacturing practices.

 

(…) We are persuaded the trial court erroneously granted summary adjudication on the strict liability claim based on a stream of commerce approach.

 

(…) Read in context, however, it is clear O’Neil did not intend to overturn five decades of case law extending strict liability to lessors, bailors, and others within the stream of commerce who may not bear the label of manufacturer, seller, or supplier. (See, e.g., Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 251 [“entities in the stream of commerce for purposes of strict liability are not limited to those readily identifiable as designer, manufacturer, or vendor of the defective product”]).

 

We likewise reject Amazon’s argument it is merely a service provider who is not subject to strict products liability. We have identified how it was instrumental in the sale of the hoverboard to Loomis.

 

Even if Amazon may be characterized as a service provider, Murphy v. E. R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672 (Murphy) and Hernandezcueva v. E.F. Brady Co., Inc. (2015) 243 Cal.App.4th 249 (Hernandezcueva), cited by Amazon, are instructive on the issue of when strict liability attaches to service providers.

 

In both cases, the court determined the defendant provided both a service and sale of a product. Therefore, “the propriety of imposing strict liability on a party that both supplies and installs a defective component hinges on the circumstances of the transaction.” (Hernandezcueva, supra, 243 Cal.App.4th at p. 260.) In Murphy, the court determined the service aspect of the defendant pharmacist’s role predominated over its sale of prescription drugs. (Murphy, supra, 40 Cal.3d at p. 675.) In Hernandezcueva, the court determined the subcontractor that installed drywall in a commercial project provided both a service (the installation) and the sale of a product (the drywall). Despite its dual role, the subcontractor was a participant in the stream of commerce for strict liability purposes. (Hernandezcueva, supra, at p. 263).

 

Here, Amazon provides a service to TurnUpUp in the form of a website to list its product and, as described above, was also instrumental in the sale of the product by placing itself squarely between TurnUpUp and Loomis. That it did not hold title to the product and did not have physical possession of the hoverboard does not automatically render it solely a service provider and remove it from strict liability.

 

 

(California Court of Appeal, Second Appellate District, April 26, 2021, Loomis v. Amazon.com LLC, Docket No. B297995, Certified for Publication)