UB legal scholar: Amazon’s ‘commingling’ of goods is deceptive and should stop

BUFFALO, N.Y. – University at Buffalo School of Law Professor Tanya Monestier published a paper in the Villanova Law Review titled “Amazon’s Dirty Little Secret.”

The article details the retail giant’s practice of “commingling,” in which Amazon switches the company selling the merchandise without notifying the customer.

“Commingling means that the same goods from different sellers are stored together and then sold interchangeably,” Monestier writes. “The theory is great, as long as these goods are truly interchangeable. All it takes, however, is for some bad actors to co-opt the comingling supply chain and those goods are no longer interchangeable.”

She continues: “Some goods are real. Some are fake. Some are junk. Some are dangerous. When you order something on Amazon, you don’t know what you are going to get. You are told your goods are ‘sold by’ Amazon, but the actual goods you get may be from a shady third-party seller based in Shenzhen, China.”

“I argue that Amazon should no longer be permitted to get away with its secret practice of comingling. Telling a buyer that they are getting goods from Seller A and then giving them goods from Seller B is deceptive – plain and simple,” she writes. “The law should not countenance such a practice.”

Amazon’s pattern of unethical behavior

It’s not the first time Monestier has taken on Amazon. Two years ago, in the Cornell Law Review – one of the country’s premier law journals – she examined Amazon’s liability in contracts for defective goods. In the Cornell article, Monestier says Amazon deliberately deceives customers with a practice that frees the company from any liability for defective goods and the harm they may cause.

“You have probably purchased goods on Amazon,” she begins in the Cornell article.  “Did you know that if the goods you purchased on Amazon turn out to be defective and cause serious personal injury, Amazon is probably not liable for them? Did you know that even though you placed an order on Amazon, gave payment to Amazon and received the goods in an Amazon box, there is a good chance that the goods are not ‘sold by’ Amazon — but are instead sold by a third-party seller?

“Did you know that Amazon tries to avoid liability for goods sold on its platform on the technicality that it does not hold ‘title’ to third-party seller goods, even though it promotes those goods online using Amazon branding, stores them in Amazon facilities, and delivers them in Amazon trucks? And did you know that the reason Amazon does not have title to those goods is because it unilaterally sets the title terms in its 68-page contract with third-party sellers?”

A “shell game” is how she described Amazon’s practice of hiding from its liability.