Amazon never had possession or control of the caffeine powder that led to a Lorain County teen’s death, so the company cannot be held liable for the substance’s purchase from a vendor through Amazon’s website, the Ohio Supreme Court ruled recently.

A unanimous Supreme Court ruled that Amazon does not meet the definition of “supplier” under Ohio’s product liability law when a vendor uses the Amazon Marketplace to “source, sell, fulfill, ship, and deliver” products without involving Amazon.

Writing for the Court, Justice Judith L. French stated that Amazon did not qualify under the law as a “supplier” under the theory that it “otherwise participates in the placing of a product in the stream of commerce.” As a prerequisite for subjecting Amazon to product supplier liability, she concluded, the company would have to have some control over the product, and it did not in this case.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, R. Patrick DeWine, and Melody J. Stewart joined Justice French’s opinion.

Justice Michael P. Donnelly concurred in judgment only, writing that applying Ohio’s laws designed for 1980s’ style retail to modern e-commerce is inequitable, and without changes by state lawmakers, the law remains “in the [S]tone [A]ge.” A mom-and-pop retail store could be held liable under the current law as a supplier, but “not a business that is responsible for hundreds of millions of dollars’ worth of retails sales in Ohio,” he wrote.  

The decision affirmed rulings by the Lorain County Common Pleas Court and the Ninth District Court of Appeals rejecting the claims by D.S., the administrator of the estate of L.S. L.S. died in 2014 after ingesting a fatal dose of caffeine powder.

In early 2014, L.S.’s friend, identified in court records as K.K., conducted a product search on Amazon using the term “pre-workout.” She found several products and clicked on Hard Rhino Pure Caffeine Powder. Tenkoris LLC, a third-party vendor, sold the powder and posted the product on Amazon under a website storefront named TheBulkSource.

To sell on Amazon, Tenkoris had to agree to the Amazon Services Business Solutions agreement, which required the company to “source, sell, fulfill, ship, and deliver” the product to the purchaser. Amazon also offers vendors a “Fulfillment by Amazon” program, where Amazon charges a fee to store the seller’s product in an Amazon fulfillment center, which Amazon then packages and ships to buyers. Tenkoris did not use that option to sell Hard Rhino to K.K.

K.K.’s purchase order stated the powder was sold by TheBulkSource and that TheBulkSource should be contacted about any return, replacement or questions about the order. Amazon never had possession of the powder and never physically touched the product.

Three months after receiving the powder, K.K. poured some of it into a plastic baggie and gave it to L.S.. Later that day, L.S. was found unresponsive in his home and pronounced dead on the scene. The coroner concluded he died from symptoms related to acute caffeine toxicity.

After L.S.’s death, his father filed a lawsuit in Lorain County against Amazon, its affiliated companies, K.K., Tenkoris, a Chinese company that made the powder, and a company that imported the powder to the United States.

All the parties from the case except Amazon were dismissed. Amazon requested summary judgment from the trial court, maintaining that it was not liable for L.S.’s death under any of the 12 legal arguments D.S. presented. The trial court agreed and granted Amazon a favorable summary judgment.

D.S. appealed to the Ninth District, but only under two theories — that Amazon was liable under the Ohio Products Liability Act and the Ohio Pure Food and Drug Act. The Ninth District affirmed the trial court’s decision.

D.S. appealed to the Supreme Court, which agreed to hear the case.

Justice French wrote that D.S.’s claims against Amazon under R.C. 2307.71, and the subsequent provisions making up the product liability act, depend on whether Amazon meets the definition of “supplier.”

Under R.C. 2307.71(A)(15)(a)(i), a “supplier” includes “[a] person that, in the course of a business conducted for the purpose, sells, distributes, leases, prepares, blends, packages, labels, or otherwise participates in the placing of a product in the stream of commerce.” D.S. maintained that Amazon is a supplier under the ”catchall” provision for one who “otherwise participates in the placing of a product in the stream of commerce.”

The majority opinion noted that catchall provisions in Ohio law are considered to embrace things of similar character to the terms that precede it. The list in the law includes the sale, distribution, lease, preparation, blending, packaging, or labeling a product.

“All the specified actions involve some act of control over a product or preparation of a product for use or consumption,” the Court stated.

The next provisions of the liability act indicate that those who only act in a financial capacity with respect to the product or arrange for the lease of a product are not suppliers. When reading the list of those who are considered suppliers in conjunction with those who are not, the Court concluded that participating in placing a product in the stream of commerce requires some control over the product.

The opinion noted that other courts have taken a similar view on the degree of control Amazon exerts over a product and concluded the company is not liable for products sold by vendors through the Amazon Marketplace. The Court pointed to recent decisions by a New Jersey state court and the U.S. Sixth Circuit Court of Appeals, which considered Tennessee’s product liability law.

D.S. also urged the Court to consider the “policy objectives” of Ohio’s product liability law. The opinion noted that the Court in prior cases adopted the view that the “burden of accidental injuries caused by products intended for consumption be placed on those who market them,” and that common-law product liability principles should shift the “costs of injuries away from consumers.”

The opinion noted the Ohio General Assembly is aware of the common law and when it enacted the product liability act in 1988 it did not indicate it was adopting common-law principles. In 2005, the legislature  added an amendment to the act, expressly stating the law is intended to nullify any claim asserting common law.

The Court stated that given the “clear statement of legislative intent” from the act, the law does not allow it to consider D.S.’s policy argument.

D.S. maintained that because of Amazon’s “retail dominance” it is best positioned to compensate consumers injured by those who buy products through Amazon from vendors.

“[D.S.]’s arguments for cost-spreading and risk allocation, however, implicate policy concerns that we reserve for the General Assembly to address,” the opinion concluded.

In his concurring opinion, Justice Donnelly stated he “reluctantly” agreed that the current definition of “supplier” does not incorporate the role Amazon plays when a sale made on its website is fulfilled by a vendor. He noted the majority opinion found Amazon was not a supplier “under the facts of this case,” but does not foreclose the possibility that Amazon could be considered a supplier in other sales fulfilled though the company’s website.

He noted that Amazon controls all the communications with the customer and the vendor selling the products, and is well-positioned to monitor the vendors and limit e-commerce services to “reputable third-party sellers that select safer products,” just as traditional brick-and-mortar companies are responsible for the products sold in stores.

He noted the standards in the law were written in a day when stores and mail-order companies facilitated their own sales and fulfilled their own orders separately. The 1988 law does not address the technology, communications, and commerce standards of today’s e-commerce, he wrote.

“The divide between the pre-Internet age and the current age is so profound that laws like the Act might have well been written in the [S]tone [A]ge,” Justice Donnelly concluded.

Because the Court must follow the law as written, “in the [S]tone [A]ge we must remain,” he stated.