Filed 3/11/22 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO LARRY LEE, Plaintiff and Appellant, A158275 v. AMAZON.COM, INC., (Alameda County Super. Ct. No. RG14738130) Defendant and Respondent. Under legislation enacted as Proposition 65 in 1986, businesses are prohibited from knowingly and intentionally exposing any individual to certain chemicals without first providing a warning. Lee seeks to hold Amazon.com, Inc. (Amazon) accountable for offering on its Web site, without warnings, certain skin-lightening face creams sold by third parties and alleged to contain mercury. The trial court concluded that Amazon is immune from liability under the federal Communications Decency Act (CDA) and also that Lee failed to establish several elements of his case under Proposition 65. Lee maintains Amazon is not protected by the CDA and the trial court erred in its view of the evidence required to establish the alleged statutory violations. 1 We agree with Lee and, therefore, will reverse and remand for further proceedings.1 BACKGROUND California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Act) (Health & Saf. Code, § 25249.5 et seq.), adopted by voter initiative in 1986 and commonly known as Proposition 65, provides, “No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.” (Health & Saf. Code, § 25249.6.) Mercury and mercury compounds were listed by the state as reproductive toxins under Proposition 65 in 1990. (Cal. Code. Regs., tit. 27,2 § 27001, subd. (c); see Health & Saf. Code, § 25249.8.)3 1 The Attorney General filed an amicus brief in support of Lee pursuant California Rules of Court, rule 8.200(c)(7). Exercising his authority to represent the public interest, the Attorney General explains he has a “special interest in the proper interpretation and enforcement of” Proposition 65 as the “public official with statewide authority to enforce” the Safe Drinking Water and Toxic Enforcement Act of 1986 and “the only public official with authority to review and comment on settlements entered into by private enforcers under Proposition 65.” Additionally, we granted applications to file amicus briefs from several nonprofit organizations whose missions relate to the subject matter of this case. We have received amicus briefs on behalf of Lee from As You Sow and Center for Food Safety, Black Women for Wellness and the Mercury Policy Project/Tides Center, and on behalf of Amazon from the Civil Justice Association of California. 2Further references to “Regulations” are to title 27 of the California Code of Regulations except as otherwise specified (e.g., Regs., § 25102). 3Under California law, a discarded substance is “hazardous waste” if it contains 20 milligrams per kilogram, 20 parts per million (ppm) or more of 2 Cosmetics containing one ppm (0.0001 percent) or more of mercury are prohibited under federal law. (21 U.S.C. § 331(a)–(c); 21 C.F.R. § 700.13(d)(2)(i).)4 According …
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