Ina Steiner EcommerceBytes Blog
News and insight focusing on ecommerce.
by Ina Steiner, Editor of EcommerceBytes.com
Mon Nov 18 2013 20:45:31

How Liable Are You for the Products You Sell?

By: Ina Steiner

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Did you know that simply describing a product you sell can land you in hot water, even if you have nothing to do with the production or content of that item? Should you think twice before you list certain items for sale on Amazon, eBay or elsewhere online?

When I think about sellers' liability for the products they sell, I generally think about faulty features and recalls. When it comes to selling books, pamphlets or manuals and the like, it seems like it's the author or publisher who is liable for the content, but a new case impacting Amazon in the UK has me wondering how liable sellers are for the products they sell, including the content of the books they sell.

Should Amazon or any other marketplace be held responsible for claims made in listings descriptions that are pulled directly from the publication they're selling?

The case came up when UK's advertising regulatory agency ASA investigated a complaint against Amazon for the way it described a book available for sale on its website called "Melanie's Marvelous Measles."

Included in Amazon's description of the book was the following, "Melanie's Marvelous Measles was written to educate children on the benefits of having measles and how you can heal from them naturally and successfully. Often today, we are being bombarded with messages from vested interests to fear all diseases in order for someone to sell some potion or vaccine, when, in fact, history shows that in industrialized countries, these diseases are quite benign and, according to natural health sources, beneficial to the body."

The complainant used an interesting approach to get Amazon to stop selling the book - or at least to try to get Amazon to change the way it was selling the book: it called Amazon's description of the book an advertisement, and it filed a complaint with the UK advertising regulatory agency.

They filed the complaint on the following grounds:
1) the implied claim that measles was benign; and
2) the implied claims that vaccination was unnecessary and unsafe were misleading and could be substantiated.
3) The complainant also challenged whether the ad discouraged essential treatment for a condition for which medical supervision should be sought.

Amazon said the "product detail" page of its website, including the text in the product description, was created automatically from a catalog data feed supplied by a third-party. Amazon pointed out that the claims were a verbatim reproduction of text on the book's cover, and stated that as such they were editorial content only.

According to the ASA ruling, Amazon also said the company was "keen to ensure that their customers were able to post reviews on the website of products sold, and noted that the reviews for the book indicated that the author's views on the subject matter of the book appeared to be shared by a significant minority of customers." You can read more about Amazon's response on the ASA website.

Nevertheless, the ASA concluded that the Amazon "ad" was irresponsible because it discouraged essential treatment for measles. "On that point, the ad breached CAP Code (Edition 12) rules 1.3 (Responsible advertising) and 12.2 (Medicines, medical devices, health-related products and beauty products)."

The ASA wrote in its ruling, "The ad must not appear again in its current form. We told Amazon to ensure that their marketing communications did not imply that expressions of opinion were objective claims and did not discourage essential treatment for conditions for which medical supervision should be sought."

Amazon continues to sell the book but has changed the description:

"Melanie's Marvelous Measles is a book written by Stephanie Messenger who has devoted her life to educating people about vaccines and natural health choices. This book takes children on a journey to learn about vaccinations for childhood illnesses, like measles and chicken pox."

What do you think about the case - should retailers, online marketplaces and online sellers take the time to verify all product descriptions for their accuracy? Does this make you think of your own product listing descriptions in a new light?




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by: FLIPPER This user has validated their user name.

Mon Nov 18 23:43:35 2013

This article just touches the tip of the iceberg for online sellers regarding one form of liability. FWIW it used to be that you could add a disclaimer  ''information provided is for informational use only and does not constitute a warranty of merchantability or suitability of this product for any particular purpose''.   With most sellers online being sole proprietors facing potential UNLIMITIED liability this is a subject that I think warrants more articles/attention.

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This user has validated their user name. by: thehosst

Tue Nov 19 00:18:13 2013

Hello Ina, this is an interesting article, we have been dealing with a similar issue for quite some time, but the issue is coming from quite persistent Google staff from both Adwords and Shopping, we have a lot of documented communication where they are asking us every week to remove or alter product descriptions in order to "meet the Google policy". We have explained many times for now months that we are not the manufacturers and we should not be changing product descriptions, but what is worst, is that they are asking us to change or delete important terms in nutritional and skin care supplements. Imagine that someone is allergic to an ingredient which Google has requested us to delete or change, and that something happen to a customer, who should be liable here? If is in fact Google Policy like they say, we imagine is applied among all merchants and not just a few. We did notice that this type of "Google Policy" applies only to a few smaller merchants and never to bigger merchants, in my point of view, that is selection or discrimination. I would like to bring a lawyer to this issue so we can let Google know the kind of things their staff is asking merchants to do. Google is nobody to tell merchants what they should sell, nor what terms they should use in their stores or sites, this is what happens when Monopoly power is being used and abused.  I would like to know if there are other folks having the same issues from Google Staff.  

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This user has validated their user name. by: Bijoux Dragon
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Tue Nov 19 00:20:40 2013

Years ago I stopped selling any health related books after my Mother had a heart attack by following the advice in a "Bad Pills" newsletter she got.  Also stopped selling handmade dog biscuits because of liability.

In this suit happy culture, we sellers need to be very careful about what we sell because we do not have the deep pockets that the big boys/girls have.  

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by: JustTheFacts This user has validated their user name.

Tue Nov 19 01:15:04 2013

Sounds to me that the ASA enjoys their paychecks from the the vaccines companies too much to allow anyone to interfere with those profits.

Although a disclaimer should do the trick.

I'll take 3 guess who filed the complaint but I probably only need 1.

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This user has validated their user name. by: Rexford

Tue Nov 19 07:27:01 2013

Ina, please don't give eBay buyers any more ways to put the screws to sellers.  : )

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by: FREDDY This user has validated their user name.

Tue Nov 19 07:49:49 2013

Way too many frivolous law suits out there.
If you want to bring legal action against an online seller then you have to include the source where it was purchased, like retail store? then include the distributor for that store then the main warehouse and or manufacturer. Most likely the manufacturer has been through this and has legal staff just for these types of actions. So for an online seller, I am not worried.
I would worry if If I sold recalled items though.
I would also be worried if I made and sold homemade food items or anything in that type of category.

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by: jsgeare This user has validated their user name.
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Tue Nov 19 09:23:59 2013

I can't comment on the particular case at hand, but the issue appears to reside in the area misleading statements or false advertising, and the liability will be determined by who has the best lawyers.

But that leaves another wide open, more readily understood area of PRODUCT liability, especially for those who make or modify products. All those home made candles and soaps and sewn or knitted goods, all those cute craft items -THERE is where lies my concern. My guess is that small producers don't carry insurance to cover this risk, or else they mistakenly think their homeowners policy will respond - which it won't.

I am surprised to see no insurance product specifically designed to cover this risk.

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by: timeaftertime This user has validated their user name.

Tue Nov 19 10:11:56 2013

@ jsgeare -

There apparently is no ''insurance'' product designed to cover small producers (probably the premiums would be unaffordably high, anyway?) but there is a business status :

Limited Liability Company - terrific for small businesses, this prevents someone who sues over your product or business circumstances from touching your personal assets; your BUSINESS assets are vulnerable, but not personal assets.  

There are costs involved to set up a LLC but it is serious legal protection. Important and accordingly, you must keep personal strictly separate from business.

Take a look around - why do you suppose all the doctors, attorneys, etc. are using LLPs (Limited Liability Partnerships) !! They work.  

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by: Bidonmine This user has validated their user name.

Tue Nov 19 10:20:14 2013

@jsgeare:

The second they 'create' an insurance vehicle for home-made item liability is the moment that the lawsuits will explode on the scene!

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by: JLynnPro This user has validated their user name.
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Tue Nov 19 14:38:09 2013

Oh, yes.  I am an LLC, and I happily pay my fee every year to the state of Maryland for this very reason--protection!  You never know what someone will sue over!

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This user has validated their user name. by: Tula

Tue Nov 19 17:52:01 2013

This is a hairy area. At what point can someone's opinion be considered fact? And is it really a venue's responsibility to make that determination? Every author is entitled to an opinion and can write what they like, but unless it's noted as opinion and not fact, it appears there can be issues. I suppose this kind of thing is where eBay's "just a venue" comes in. Most of these platforms are simply too big to be able to police in more than the broadest terms. I don't think it's the venue's responsibility to validate the products, other than ensuring the seller is legally allowed to sell them and that they don't fall into a prohibited category.

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by: giftcentral This user has validated their user name.
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Tue Nov 19 20:16:32 2013

There are benefits to having the measles?

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This user has validated their user name. by: Captain Nemo

Wed Nov 20 10:16:45 2013

Amazon wasn't held liable for the sale of the book, merely the ''description'', which itself contained misleading/dangerous information.  It's interesting that it wasn't even an ''Amazon'' description, but a reproduction of information - verbatim - from the cover.

If you think about it, even allowing a picture of a book cover at high enough resolution to read the information on the cover could also have gotten Amazon in trouble - it's still presenting ''dangerous'' information.

@justthefacts - a drug company payoff?  Speaking of liability, you might want look up the meaning of defamation.

http://en.wikipedia.org/wiki/Defamation

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by: FLIPPER This user has validated their user name.

Wed Nov 20 20:20:08 2013

Not to attempt a ''threadjack'' but Captain Nemo you bring up another excellent issue that I would love to see addressed in this forum - negative ''feedback'' and/or other comments made in the forums of various online venues regarding specific sellers and/or their wares and the potential liability the originator of said remarks/comments/ ngative reviews/feedback etc. can face as a result!

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by: Cassie This user has validated their user name.

Thu Nov 21 02:19:02 2013

I wrote a whole blog on this and yes common with antiques.......limited liability company is good but go a step further limited liability holding company! Main business only hold various business all separate

brick n mortar separated little categories from on-line category to the even trade show sales --lazy asses who don't want to work assume the sue the whole value your holdings not if you divided it it smaller clumps that cost them more trouble in attorney & court costs exceeds any return! LLC good but think holding company as also a means of business plan to sell off on portion your business and or divide it say future settlements divorce or inheritence



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