On March 14, 2025, Amazon filed suit against the Consumer Product Safety Commission (CPSC) in the U.S. District Court for the District of Maryland, challenging CPSC’s July 29, 2024, and January 16, 2025, orders determining that Amazon is “a ‘distributor’ of certain products that are defective or fail to meet federal consumer product safety standards, and therefore bears legal responsibility for their recall.” According to CPSC’s January 17, 2025, announcement, “[m]ore than 400,000 products are subject to this Order: specifically, faulty carbon monoxide (CO) detectors, hairdryers without electrocution protection, and children’s sleepwear that violated federal flammability standards.” CPSC determined that the products, listed on Amazon.com and sold by third-party sellers using the Fulfillment by Amazon (FBA) program, pose a “substantial product hazard” under the Consumer Product Safety Act (CPSA). In its complaint, Amazon argues that CPSC “overstepped” the statutory limits of the CPSA by ordering “a wide-ranging recall of products that were manufactured, owned, and sold by third parties,” not Amazon itself. Amazon states that CPSC’s recall order “relies on an unprecedented legal theory that stretches the [CPSA] beyond the breaking point and fails to discharge” CPSC’s obligations under the Administrative Procedure Act (APA).

Amazon argues that it “falls within the definition of third-party logistics provider with respect to products sold using the FBA service because it does not manufacture, own, or sell those products, but instead stores and ships them on behalf of third-party sellers who retain title throughout the transaction.” Amazon notes that CPSC’s July 2021 administrative complaint was the “first of its kind” in seeking to label an online marketplace as a distributor under the CPSA, holding it responsible for recalling products “because it provided the third-party sellers with logistics services.” Amazon cites a statement by Robert S. Adler, then Acting Chair of CPSC, “admitt[ing] that the ‘statute is not perfectly clear on’ whether the Commission’s authority extends to Amazon’s FBA service.”

Amazon also argues that CPSC violated the APA in requiring a new round of recall notices, despite Amazon “having already twice notified every individual who purchased the products” and that Amazon “issue new refunds to purchasers (despite having already provided a full refund to every customer in 2021 or 2022).” According to Amazon, CPSC’s typical product recall practices require only a single round of notices, and binding precedent holds that CPSC “acknowledge and provide a ‘reasoned explanation for’” departing from its past practice.

According to Amazon, the CPSA vests CPSC Commissioners “with a potent combination of governmental functions, authorizing them to act as judge, jury, and prosecutor in the same proceeding.” Amazon notes that the body that voted to file the complaint against it — the Commissioners — “also has the power to hear the evidence, decide factual disputes, interpret and apply the law to the facts, and fashion the remedy.” Amazon states that this arrangement “contravenes Amazon’s Fifth Amendment rights because it ‘violates the [Supreme] Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.’”

Amazon asks the court to:

• Vacate CPSC’s January 16, 2025, Final Order, as well as all earlier orders, “as arbitrary and capricious, contrary to law, in excess of statutory authority, and contrary to constitutional right”;
• Declare that Amazon is a third-party logistics provider, not a distributor, with regards to its FBA logistics service; and
• Declare the Commissioners’ statutory removal protections unconstitutional.

More information on CPSC’s July 29, 2024, Decision and Order is available in our August 5, 2024, blog item.