Morning everyone we're here today for a public hearing of the consumer product safety commission in the matter of Amazon dot com Inc. Both parties have been allotted. 45 minutes total time for this oral argument with Amazon going first. I believe Amazon plans to reserve 15 minutes of their time for a bottle. And so we're going to start the hearing by hearing from Amazon council has presented argument for up to 30 minutes. Each commissioner will have 10 minutes for around a question to Amazon by order of seniority. Then we'll move on to plaintiffs council. So this Wilson feel free to begin. Good morning chairman Hones Arik and commissioners Feldman, Trump and Boyle. Well before this lawsuit was filed more than two years ago. Amazon had implemented a swift and effective remedy to address the subject product hazard in the marketplace. First Amazon took down the products from Amazon dot com so that they could no longer be sold. And then leveraging modern technology Amazon sent direct safety notice to every single purchaser of the subject products. And the record is abundantly clear and uncontested that direct notice is the most effective form of notice. It is the gold standard according to the commission. The direct notices were prominently labeled as important safety messages to attract the attention of the recipient. And they contain strong instructions to immediately stop using and dispose of the products in their homes. And the Amazon important safety messages went even further to reach a potential secondary market. They strongly instructed consumers to contact anyone they may have given the product to as a gift or a hand me down. And tell them to throw the products away. And then finally Amazon refunded the full purchase price without a reasonable allowance for use to every single purchaser of the subject products. Now complaint counsel may quibble with the precise wording of these notices or the form in which the remedy was provided. But I hope you can all agree that the best thing for consumer product safety is to be notified quickly and made whole seamlessly without any barriers to remedy imposed on the consumers. Now respectfully we understand that the commission is likely accustomed to broad latitude and control over the terms and conditions of voluntary recalls which make up the substantial majority of recalls overseen by the commission. But this is a mandatory recall proceeding one that was initiated by the very body that will make the final decision at least at the agency level. And the commission's ability to issue an order in a mandatory recall proceeding is governed by the plain terms of the consumer product safety act. There are three core questions presented by this appeal. The first is whether as a matter of statutory interpretation Amazon is a distributor or a third party logistics provider under the act. The second issue is whether the initial decisions duplicative notice punitive double refund and mandatory tender requirements are authorized by the statute and even if they are whether they're in the public interest.  I'm going to address the statutory issues and then I will pass the baton to my colleague Kevin King who will address the constitutional issues. Let me start by explaining why Amazon is not a distributor under the plain terms of the act and if you'll bring the first slide up please. If you flip to slide one we can see the textual and structural overlap between the definition of distribution on the upper left side of the screen and the third party logistics provider definition on the upper right. Distribution and commerce means in relevant part to hold for sale and distribution after introduction into commerce. A third party logistics provider defined on the right is a person who only receives holds or otherwise transports products but who doesn't take title. And likewise a distributor is someone to whom a product is delivered and a third party logistics provider receives the product through 2050 to be on the bottom right of the screen. A third party logistics provider is carved out from being considered a distributor as long as the only distribution activities in which it engages are receiving and transporting products. And the next slide shows this textual and structural relationship the yellow circle represents distribution in commerce. The green circle illustrates the relationship between these terms third party logistics provider is an exception to the rule of distribution. It can't be as complaint council argues that by receiving holding or transporting products a third party logistics providers automatically a distributor that interpretation of the statute would render the statutory exception. Anality the yellow would entirely engulf the green. And the same is true for reading the term solely too broadly. The presiding officer correctly rejected complaint council's argument that doing so doing anything absolutely anything other than receiving holding or transporting products disqualifies a person from being a third party logistics provider. The presiding officer below characterize that street jacketed interpretation as and I quote silly. Of course third party logistics providers have to be able to provide ancillary fulfillment activities including warehousing goods inspecting products packaging and tracking goods. The term solely read in its proper context applies to distribution activities not to any other activity. It doesn't disqualify a logistics provider if it conducts non distribution activities. And so the on the screen the activities identified in blue don't amount to distribution activities. They include website operation payment processing customer service all companies have to do these kinds of things. It doesn't mean that it doesn't mean that it automatically makes them distributors. We think the fourth circuit's decision in the Erie case is instructive on this point. Among the issues in that case was whether Amazon when it fulfills products manufactured and sold by third parties is a distributor or seller under Maryland's products liability law. And significantly the court held that the absence of title was material to its decision that Amazon through FBA was not a seller or distributor. And moreover with regard to these non distribution activities the court noted quote although Amazon services were extensive in facilitating the sale. They are no more meaningful to the analysis than are the services provided by UPS ground which delivered the product. So simply put these services don't disqualify Amazon when it fulfills products manufactured and sold by others from being a third party logistics provider. And the term title is also quite significant in the definition Congress meant something when it put the term title in the definition and it has to be given effect. Numerous courts have held that Amazon is outside of the distribution chain because it does not hold title. And I won't go through all of those those cases now but I'll quote just one this other district in New York in 2018 holding that regardless of what attributes are necessary to place an entity within the chain of distribution. The failure to take title places that entity on the outside. Now we acknowledge that these product liability cases were not construing the consumer product safety act. However as the Supreme Court has noted Congress quote intends to incorporate the well settled meaning of the common law terms. It uses and as you well know there are many parts of the consumer product safety act and its regulations that invoke and rely on incorporate common law tort concepts. I'll just point to one 16 CFR part 1115 the defect regulations include as an express factor for determining whether a product is defective relying on I quote case law in the area of products liability. Let me now turn to remedies. The initial decision imposed a doubly flawed remedy. First a second refund to incentivize mandatory return or proof of destruction of the product. It's abundantly clear that the plain terms of section 15 D which is the remedy part of the consumer product safety act provides for a refund of the purchase price but not a multiplier of the purchase price. In fact it's just the opposite by its plain terms that allows a reasonable allowance for use. The text of the act does not mention returns that's undisputed and the presiding officer recognize that as the title of the of the 15 D provision notes there are only three remedies known as colloquially as a three Rs repair replace refund. There's no return or in the statute that should be the end of it and by contrast section 12 the imminent hazard provision expressly references recall as a remedy for imminent product hazards. So Congress clearly knew how to put recall in section 15 D as a remedy but did not and that has to mean something. Section 15 D to which instructs the commission to specify the person to whom the remedy should be afforded also doesn't support product return as a precondition for a remedy. And although legislative history is not the law. Complaint council importantly misconstrues the legislative history on which it relies in in two ways. First they omit the part of the legislative history which addresses which person the original purchaser or the present owner should receive the remedy. And secondly they omit the legislative history clarifying that the committee's concern was proof of claim and not tender as a separate remedy. And if we turn to the next slide complain council also relies on informal guidance in particular the so-called cap template draft as well as the recall handbook. Both the 2012 and the 2021 versions but as the recall handbook rightly notes on its cover it has not been reviewed or approved by and may not represent the views of the commission. And it expressly states rightly that it doesn't supersede statutes or regulations by contrast if you turn to the next slide. This is a finding directive produced by complaint council in discovery following a motion to compel complain council has claimed that this document is confidential but is actually on the internet. And it indicates that based on a study conducted by the agency that there are two factors among the two factors that lead to an effective recall or direct notice and disposal of the product in the consumers homes. These are two factors among many that contribute to a high recall correction rate and that is precisely what Amazon did here send direct notice to every single purchaser and strongly instructed them to dispose of the products in their homes. And finally let me turn to the question of notice. The test for whether additional notice is required under 15 C is whether it is required to adequately protect the public. That's the test written into 15 C. It's undisputed here that Amazon has already provided three distinct forms of direct notice the gold standard of notice to every single subject purchaser. First the email notices that were sent to all purchasers over two years ago. Second, a message center notification that is on Amazon account users personal page and then third a banner on each person's purchasers orders page and that banner. When clicked on takes the purchaser the Amazon.com purchaser to a personalized your recalls and product safety alerts page. If you go to the next slide. This slide shows the your recalls and product safety alerts page and as you can see there is a photograph of the product. It's clearly identified. What is being recalled and provides instructions on remedy mentions the consumer product safety commission and this page remains on a personalized account until that banner is clicked on. Amazon appreciates that the chairman has publicly commended recently at the Iqviso conference. Amazon's use of its technological capabilities to send safety information to consumers. This too is a direct and effective notice just like the original email notification sent years ago. So there's no need for duplicative direct notice in light of these three forms of direct notice already. Next slide please. As I'm sure the commission is aware under the CPSA section 2064 I to the commission has flexibility to determine whether one or more of the mandatory recall notice elements is unnecessary or inappropriate. Under of the circumstances. And we think this is the quintal central case in which additional direct notice is unnecessary under the circumstances given the three different forms of direct notice gold standard notice that Amazon has already provided to 100% of the purpose of the purchase population. And let's turn to the final slide. The basic components of the mandatory notice recall ruler in the upper left and on the left is a sample direct notice regarding a non compliant children's sleepwear product that was sent by Amazon two years ago to a purchaser of that product. And on the right is a 2020 fairly recent CPSC indirect notice covering a very similar product with a similar hazard. They are virtually mirror images of one another. The purple highlighted language in both covers the identification of the product and as you can see in the Amazon notice purchasers are effectively provided with knowledge that will enable them to identify the product includes an order identification number. The name of the product a description of the product the size the color of the prints and a link to a page with additional information including a photograph and the date of the purchase. The green highlighted language contains a virtually identical hazard warning in both the CPSC proved and the Amazon direct notice both indicate that the products failed to meet the federal flammability standard. And importantly they use identical identical language to describe the hazard both say posing a risk of burn injuries to children. Interestingly where the Amazon notice and the CPSC approved indirect notice vary is in the strength of the remedy language. The Amazon notice instructs consumers to forcefully stop using it immediately and dispose of the item if you purchase and it goes to the secondary market. If you purchase this item for someone else please notify the recipient immediately and let them know that they should dispose of the item. And it also indicates the remedy that Amazon is applying a refund to the purchasers account. By contrast the CPSC indirect notice instruction merely informs consumers to take the recalled product away from children and contact the recalling firm for a refund. So we believe that these notices not just one, two, three, three direct notices by Amazon meet the statutory purposes of the recall notice rule. For the very same reasons because no additional notice is required to adequately protect the public. The section 16C required standard. No social media posts aren't necessary to protect the public. This the products it's undisputed that the products were sold exclusively on Amazon.com and 100% of all of the purchasers have already been notified through the most direct and effective form of notification per the commission direct notice. Let me terminate over to my colleague Kevin King to discuss Amazon's constitutional arguments. Good morning, Mr. Chairman, commissioners Feldman, Trumka and Boyle. Kevin King, Covington and Burling. I'll be presenting as my colleague said the constitutional issues on behalf of Amazon. I'd like to start if I could with the additional notice that complaint council has requested here and explain why that additional notice violates the First Amendment because it would micromanage Amazon safety messaging and use of its social media channels. Without adequate justification. Binding precedent makes clear that this commission cannot compel Amazon speech in that way, given the circumstances were presented with in this matter, given the prior notice that Amazon has already provided to consumers to purchasers of the subject products. And I want to stress at the outset that this is a narrow First Amendment defense to these claims of additional notice. We're talking here only about a scenario in which notice undisputedly has already been provided to all of the consumers and whether or not additional notice is warranted. The parties agree that the Supreme Court central Hudson decision is the correct test here and under that test complaint council has the burden to establish based on evidence not speculation. Two things. First complaint council has to show that the additional notices that they're seeking would directly advance important governmental interests. And second complaint council needs to show that the additional notices are not more extensive than necessary in other words that they're narrowly tailored. So we're dealing here really with two disputed elements directly advanced on the one hand and more extensive than necessary on the other. The order fails both of those tests and I'd like to take them one at a time if I could. So starting with directly advanced complaint council has not shown based on evidence that the additional notices here would materially and substantially advance a substantial governmental interest as central Hudson requires. And the DC circuits decision and National Association of Manufacturers versus SEC illustrates that point. Nam dealt with SEC regulations that compelled disclosures about conflict minerals and the court held in Nam that those disclosure requirements violated the First Amendment because the agency did not quantify or otherwise support with evidence. Ability of its disclosures to show that they would directly advance the commission's purported objectives instead there the SEC relied on speculation. Order here issued by the presiding officer suffers from the same fundamental defect complaint council in the briefing points to superficial assertions that additional notice would be better that it would be helpful. But that's you know they say that that additional notice would serve some important goals. Even if there are important goals here and I think we acknowledge there are important goals here but even taking that as a given. Complaint council has not shown that there would be direct advancement here based on the additional notices. The points that complaint council has made are simply not enough and if you look at the Supreme Court's decision in greater New Orleans which we discuss in our opening brief and our reply brief. You'll see there what complaint council needs is hard evidence but scour complaint council's briefs high and low. You will not find quantitative analysis studies surveys or the other kinds of evidence that courts have depended upon have insisted upon to meet this directly advanced requirement. That shortcoming sank the disclosure requirement in NAM and it's fatal to complaint council's arguments here. Now complaint council has argued that the Supreme Court's decision in edge broadcasting. Eliminates this requirement here but that's not the case really for two reasons. First off the statute at issue in edge broadcasting was generally applicable it applied to everyone in the industry equally. Here in contrast we're dealing with a party specific order that applies only to one company only to Amazon. Second unlike the statute at issue in edge broadcasting. The statute we're dealing with here the CPSA has an express tailoring requirement. The commission is required by statute under 2064 I to to evaluate on a case by case basis whether as my colleague mentioned whether particular notice elements are unnecessary or inappropriate in the circumstances. You didn't have that kind of tailoring duty in edge broadcasting. But even if you don't agree with me about edge. The New Orleans case that I mentioned just a moment ago is just positive here. There the Supreme Court held that an agency fails under central Hudson if it treats similarly situated speech inconsistently. Orders notice provisions are invalid under that principle because the commission routinely routinely approves notices to consumers that are largely identical to the ones that Amazon sent out here. And we provide some examples at page 36 footnote 32 of our apply brief if you'd like to look at examples. As the CPSC's own rule 30 be six deponent acknowledged the notices that Amazon provided here were quote typical. Turning then to the second part the second essential part of the first amendment analysis. The order is also unlawful because it's additional notice requirements are more extensive than necessary. What central Hudson requires this commission to do is to evaluate other less burdensome options and show that they're not sufficient. Before compelling Amazon to speak and the Supreme Court's 2018 decision in Nifla versus Basara illustrates how that works in practice. In Nifla what the court said is that the government must consider whether it can address the problem it's facing through its own speech before it turns to a compelled speech mandate. The mandate in Basara violated the First Amendment because there California did not consider did not show that its own speech its own public information campaign could not have addressed its interests. We're in the same fundamental position here because there are less burdensome ways that commission can approach its objectives where and again I want to speak to the narrow nature of our defense where you have a stipulation of substantial product hazard. In that scenario the commission can to the extent additional notice is somehow helpful it can achieve its objectives through its own social media posts through notices on its own website. Complaint council has presented zero evidence zero that that approach would not work here. And that's especially true as my colleague mentioned in light of the notices that have already gone out from Amazon. The Basara point is especially relevant for the social media portion of the order the order here requires Amazon to post things on its social media pages and it provides essentially a script for what those are going to be. The commission has its own social media pages and complaint council has touted rightly the ability of those social media pages to reach millions of consumers. The commission can use those social media pages to get the additional notice out if that's what the commission feels is necessary. At a bare minimum the Basara point I think is just positive with respect to one point which is the Amazon help pages. There's a dispute in the briefing here about which social media pages Amazon would need to disseminate the messages on would it be Amazon's main accounts or would it be the Amazon help accounts. The Amazon help pages reach nearly three times more individuals they have three nearly three times more followers than the commission's own pages. And so clearly they would be sufficient and complaint council has not shown again at a bare minimum why those Amazon help pages would not be sufficient. Finally I just want to widen out the lens that the commission here complaint council says that it would be more efficient for Amazon to send out these additional notices. But as the Supreme Court said in Basara the First Amendment does not permit the government to sacrifice speech for efficiency. Just have a few quick points on our other constitutional defenses in this matter. I'll turn quickly to complaint council's request for double refunds and why that violates the Takings Clause of the Fifth Amendment. On this just two quick points. The first is that you need not reach this constitutional issue if you agree with us that Amazon is not a distributor under the CPSA. But if you do reach this issue there are two reasons why you should agree with our position. The first is that the additional refund mandated by the order involves a transfer from one private party to another and therefore fails the public purpose test under the Fifth Amendment that's Takings Clause. And we base that argument on the Supreme Court's decision in Kilo versus City of New London. Just knowing you have about a minute for the 31st Amendment. Thank you Mr. Chairman. Second contrary to complaint council's argument payments from ordered by an agency can constitute a taking if for example depending on the severity of the penalty and its disproportionate nature. And we satisfy those criteria here in terms of severity we're talking about refund Amazon has already made of 20 million dollars in terms of proportionality. A second refund would be disproportionate to any benefits especially in light of the directive my colleague had up on the screen a minute ago 9010.34 which shows that mandatory tender would make consumer engagement less effective. With that I'd reserve for a buttle and submit on the briefs with respect to our other points. Thank you. Thank you council and I'm now going to move to questions from commissioners going to start with myself. And actually well I can start with you Miss Wilson. I'd like to get a little bit better sense of the filled by Amazon program that we're talking about today. So what services does Amazon provide to third party sellers under the fulfilled by program. Amazon runs the website Amazon.com on which products that are manufactured by third parties and sold by third parties are uploaded for sale by consumers. Amazon has the ability to take down products that are non compliant upon notice by the commission it has certain requirements for allowing third party sellers to upload photos and other information about the products to be sold. It maintains the website it receives from third party sellers holds in distribution centers those products for sale handles related fulfillment activities like tracking goods packaging shipping. I assume also if the seller violates Amazon's terms and conditions Amazon could take action against them a terminate the relationship is that accurate. That's my understanding the server there was a service terms agreement. Yes, as I assume is the case with many other third party logistics providers and common carriers. For example, I believe that UPS ground and FedEx have requirements about appropriate conditions for shipment of hazardous products or hazardous materials. What happens to the products and being held in Amazon's warehouse if there's a termination relationship either on the part of Amazon for violation terms and conditions or for the third party if they decide to they want to end at the Amazon relationship at the Amazon and are the fees involved in that or what is the process and Mr Chairman I would need to double check that information is not in the record but I can certainly get a better sense of of you know what the termination conditions are. Going back to you discussed that there was a refund provided to consumers who had purchased the products. My understanding is that wasn't conditioned on the consumers doing anything with the product is that accurate they didn't have to destroy it they didn't have to return it or take any other action. That's correct. There were no barriers to the refund remedy consistent with the commission's guidance in order to make a recall remedy most effective a consumers not be there's not to be a preconditioner barrier to the remedy so they were instructed in strong terms to throw the product away just just as the commission has indicated in many many many indirect recall related press releases. And is there any way does Amazon have an understanding of what the consumers did with those products after the refund was was provided is there. Do you have any data with respect to whether or not the product was destroyed or resold or anything along those lines. Amazon it's it's stipulated in the records uncontested that email notification was sent to 100% of the subject purchaser population with the instruction to dispose of the product and immediately stop using and reach out to the secondary market. No entity whether manufacturer retailer distributor or third party logistics provider or the CPSC for that matter can know for certain what a consumer in their home has actually done with with the product but with this particular you're talking about with with any any recall product. If a product is returned to the manufacturer as a condition for providing or refund wouldn't they then know what happened to the product. Or if there is a picture of a destroyed product as a condition of refund wouldn't they then know what the what happened to the product. Yes in those circumstances the probably very small number of consumers who would take the trouble to actually return the product as opposed to dispose of it in their homes. Then the recalling entity might know but again the commission has published statistics on the lack of effectiveness of indirect notice indirectly notice recalls. And my understanding is that the correction rate involving those kinds of corrections is very very low whereas as the corporate representative. Testified under oath Amazon's notice and remedial strategy which is direct notice to 100% of the purchase population with an instruction to dispose in their homes a barrier free remedy constitutes a 100% correction rate on a recall. And if I may Mr. Chairman the question is really not for the purposes of this proceeding is not really you know how many consumers Amazon or the commission might have proof of who've returned the product. The question for mandatory tender is is it authorized under the CPSA answer no undisputed and by the presiding presiding officer found that the act does not provide for a return remedy and that should be the end of it. Legislative history doesn't support it that the commission may have ordered that remedy in other mandatory recall proceedings that dependent on that legislative history are not binding not not persuasive in our view because they don't recognize that the statute is not authorized mandatory return as a remedy full stop. Shifting to the first amendment mark instead of being made. You described it as a narrow assertion on your part. So I understand that are you. You wouldn't be making the first amendment claims if there wasn't this notice that Amazon provided earlier so it's not you're not saying that notice couldn't be required by the commission and different circumstance where no notice had been provided. That's that's correct. Mr. Chairman. We would not be making the first amendment argument in a scenario where there never had been any notice to the consumers here. We're focused on an as applied defense with respect to the particular facts of this proceeding which is as my colleague just mentioned 100% notification to all the purchasers. If the notice is found to be insufficient or or not consistent with that the statute with that same argument still apply. It would still apply here because the statute has in 2064 I to this built in tailoring requirement where the commissioners the four of you need to determine whether or not particular items are unnecessary or inappropriate in the circumstances. So it's there is a list of required elements and then there's a tailoring requirement that cause those back essentially and in that particular context. I think we would argue that under central Hudson there's a requirement to show that the extra or additional information would directly advance and is not more than extensive than necessary. The A. L. J. Judge reference Zotterer in his opinion. Do you have thoughts on the application of that case to the circumstance. Yes, Mr. Chairman. So. The parties have agreed here that central Hudson's the appropriate test. We, you know, we believe central Hudson is the appropriate test. So for us, that's the starting point. Zotterer exists. It would apply to scenarios where there's a disclosure requirement for purely factual and uncontroversial information and various other circumstances. The DC circuit has said, for example, in the National Association of Manufacturers case that we cite Zotterer is limited to the context of advertising and point of sale disclosures. We're not here dealing with point of sale disclosures or advertising. We're dealing with a government mandated additional notification to consumers. And so Zotterer for that reason would not be applicable. Appreciate my time is coming to a close. I'm going to turn to my colleagues. Commissioner Feldman. Mr. Chairman and thank you to the parties for briefing. I want to first turn to what I consider to be the central question that the matter in front of us, which is the question of whether Amazon is a distributor within the definition of the CPSA. So, Miss Wilson, I think this is to you in the respondents appeal brief. Amazon writes that it permanently prohibited the listing and sale of the subject products, but at the same time. The respondent argues that its ancillary activities can't render it a distributor and you cite to that Hendrickson case for the proposition that additional services like payment processing don't give Amazon control over the sale. Can the respondent explain how the commission to the commission how these statements are consistent. I think I followed that commissioner Feldman. Yes, the reason they're consistent is that facilitating the sale is not a distribution activity. And as I showed on that slide, as well as the visual diagram, you have to look at the definition of the carve out for third party logistics providers in the context, not divorced and not abstractly divorced from the context of that from which it is carved out that is distribution in commerce. And so those activities, the distribution activities that are referenced both in the distribution definition, as well as the third party logistics provider carve out are similar holding for sale, receiving transporting that those that similarity in terms as well as the carve out itself structurally is what makes it clear that those are the relevant distribution activities that a third party logistics provider can engage in without being considered a distributor. Well, a third party logistics provider which Amazon asserts that it is for the purposes of the FBA sales could prohibit the delivery of products. It's not clear to me what other third party logistics providers and you mentioned several of them exercise that level of control over the actual sale. Can you speak to whether other third party logistics firms exert that kind of control over the individual sale, turning the sale on and off. Well, when Congress added third party logistics provider to 2052 be in 2008 through the improvement act, it added it to the provision that covered common carriers and freight forwarders, commonly understood to be entities like ups ground or FedEx. There's no question. And there was quite a lot of publications and news at the time that this Congress put this term into the statute that there was this new model of a third party logistics provider. Amazon was described in all of that media as sort of leading the charge on this new business model. So whether or not ups and FedEx, you know, facilitate sales of third party goods sold by others to the same extent, you know, would have to require more of an inquiry into exactly what they do they may they may well do it I don't know. But it doesn't. It's not material to this analysis, because as for circuit has said an eerie those very same services that it considered to not make Amazon a distributor or a seller. So if we're to expect, except your argument that Amazon doesn't come within the CPSA definition of distributor, and given that these manufacturers that issue in this matter are Chinese entities that may be unreachable in practice what what redress if any does the Commission have right now and maybe to ask it another way. What obligations does Amazon have under the CPSA when it acts as a when it operates the its FBA business. Well, first of all, Amazon is certainly not the only entity that fulfills orders for Chinese manufactured and sold goods. So that that seems immaterial to to the analysis as a third party logistics provider. It is. It has voluntarily taken numerous pro consumer safety steps here, including extensive coordination with compliance staff to put those obligations under our act. There are not obligations under for of a third party logistics provider would you have obligations under the act. As a third party logistics provider. Only what is specified in the third party logistics provider definition. Some aspects of the CPSA refer to persons other aspects of the CPSA refer to manufacturers retailers distributors. It would not have obligations of distributors under section 15 of the act. I'm skeptical that Congress would have drafted CPSA to create such a significant gap. It seems to be a bit of an absurd outcome to read the statute that was, as you mentioned, drafted to enhance CPSC's authority, particularly with respect to children to exclude large e-commerce firms in this way. But I do want to move on because my time is limited. Just very quickly. Yes. Commissioner respectfully, we think it would be absurd to construe the statute in a way that doesn't give weight to the way Congress put the terms into the carve out. On the section 15 remedies on the notice. This is a first amendment question. Should the commission determine that the respondents a distributor, we're then going to need to address the first amendment arguments that that you're raising to craft and appropriate remedy. The chairman asked and I appreciate the answer about whether central Hudson should control here or whether we need to look to the more permissive standard under Zoderer. And you mentioned other first amendment cases like the Sarah that deal directly with the question of compelled speech. But assuming central Hudson applies and the first three prongs of the central Hudson test are met. Can the respond and explain. How the fourth prong would be met are the al jays remedies in the July 10th order more extensive than necessary to serve the government's interest. Yes, thank you commissioner for that question. Appreciate the opportunity to expand on on the final prong of central Hudson, which just to set the table is, you know, are the compelled statements here more extensive than necessary. And the answer to that question is, yes, they are more extensive than necessary. What the case law says is that there's a fit requirement here. It's essentially a tailoring requirement. The government needs to try and evaluate options short of compelled speech and show why they wouldn't work before resorting as a sort of a final step to compelled speech for the regulated party, which here is Amazon. And so the reasons why the disclosures ordered by the presiding officer are more extensive than necessary are that there are other ways. The commission can go about achieving its objectives here. Right. Again, assuming that the other factors are met and as to 1 of them, we don't agree, but just taking that as a given for the moment. The commission has its own social media presence and its own website. And as in Becerra, those tools can be used here. Now, I don't know that they could be used in every circumstance, but to Mr. Chairman's questions a few minutes ago. This is a narrow as applied defense in this circumstance where there has been a substantial product hazard stipulation and where there already have been, you know, warnings provided by Amazon in that scenario, whatever utility there would be from additional disclosures, those can be made by the commission through its social media channels, which complete council accurately points out reach millions of people. Take judicial notice of the fact that the Amazon Twitter account has 6 million followers. The main account CPSC is by my count is around 172,000. So I do take issue with the extent to which it would reach millions. But back to the question that I had with respect to the content of the notices, would respondents here believe these notices as sort of set forward in the July 10th order? Are those of a purely factual and uncontroversial nature or are they something different? Well, let me just on the millions of people. I was I'm quoting language from from page 70 of complaint council's brief. So that's that's complaint council statement. Not mine as to purely factual and uncontroversial. You know, some of the statements here, I think would be purely factual. For example, just the number of units that had been sold, that would be purely factual information. I think, you know, some of the elements here would consider to be controversial. For example, the word recall is not in section 15 of the statute. It's elsewhere in the statute, but it's not in this one. And so you look to the case law about areas where there can be disagreement, like in the wheat growers case from California. So I don't think it would be uniform. I think you'd have some parts that would be purely factual and other parts that would not be. Okay. I see that I'm running low on time. I appreciate the questions and the responses and reserve my balance for. Thanks, Mr. Commissioner Trump. You argue that we shouldn't order a refund because you've already issued credits in the purchase amount. Let's say you have another product that poses a substantial product hazard and you provide a full refund to purchasers in that instance, but you don't tell them at all while you're doing it. Would that be enough to stop us from later ordering a refund under that hypothetical you the commission would still not be authorized to condition a refund on mandatory tender. And again, the circumstances here that Amazon warned more strongly about the hazard wasn't asking about the tender. I was asking about the refund itself. And I'm sorry, could you repeat the question? Question was, you have an SPH in the future. You order a full refund, but you don't tell the consumer why would that stop us from later ordering a full refund when we notice consumers. The question of whether it would, the question would be whether it's in the public interest to order a second refund and the separate question on notice would be whether it's required to adequately protect the public. I think under that factual scenario, the commission might have a case that notice was required to adequately protect the public. If no notice had been previously provided, unlike Amazon's triple notice here, but as to the second refund. No, I don't think so. I don't think the statute would authorize a second refund to be in the public interest. So that logic would have as few recall remedies as compensatory rather than as tools to get dangerous products out of homes and I've never heard that particular theory advanced until now. Amazon's argument on remedies suggests that the agency must weigh the costs of each remedial action against the expected benefits. How do you reconcile that argument with the text of 15 USC 2064 H which specifically states that the commission need not conduct a cost benefit analysis when determining SPH or determining the appropriate notice and remedial actions. Thank you, Commissioner Trump. Section 15 H says that the commission does not have to prepare to prepare a formal cost benefit analysis in a section 15 notice and refund situation. It did not negate the requirements of 15 C and 15 D and it didn't undo the statutory purpose of the act, which is among other things as relevant here to protect consumers from unreasonable risks from hazardous products. And so, Supreme Court precedent has made clear that public interest is needs to be interpreted in accordance with the statutory purposes is not a license to promote the general public welfare. So the public interest concept incorporates the concept of unreasonable risk, which is one of the statute statutory purposes, and a generalized balancing of the severity of the risk to the consumer, the likelihood of the risk against the reasonable of the remedy needs to be taken into account. So we might have to think it up in our heads, but but prepare means write it down. No, your honor. Commissioner. I think you're probably well familiar in the rulemaking context in having to prepare sort of an official formal cost benefit analysis. This is a different type of generalized weighing. And so we're going to go into the statutory terms and in several cases, including the fifth circuit and aqua slide and the DC circuit and the forester case. Those are cases that did construe the CPSA and they held that the, the concept of public interest and reasonable risk incorporated generalized balancing. I think that we accept judge Grimes interpretation of the meaning of solely that the fall within the definition of CPSC third party logistics provider, one must solely receive holder transport including activities ancillary to those functions. Do you argue that Amazon's activities would still fit within that definition judge Grimes divorced the term solely from its statutory context. And although he rejected to complain councils arguments that it can't, you know, a third party logistics provider can do absolute can do absolutely nothing other than those activities. But it, it has to be doing active the distribution activities in which it engages have to be within the confines of the distribution and commerce definition. What I'm asking you is the and I saw your slide where you put those in a different bucket. But I'm saying if you had to put those in the same bucket, do you argue that they're ancillary to do receiving holding or transporting your other activities operating the website? No, you don't. They're not ancillary to logistics activities. Thank you. They are blue. They are non distribution activities as held by the four circuit 15 USC 2052 a makes one a distributor when a product is delivered or sold to that entity for purposes of distribution and commerce. Now, assume that I believe that the four purposes of distribution and commerce part is satisfied. So let's only focus on the product is delivered or sold. If we were to accept your requirement that Amazon must take title to be a distributor, wouldn't it render is delivered meaningless in the statute. I guess in other words, what does it mean for a product to be delivered to Amazon but not sold to Amazon. If your definition of deliver requires transfer of title. A common understanding with regard to the distribution chain as reflected in the definition of distribution and commerce is that title transfers from manufacturer retailer to distributor. But as Congress Congress carved out third party logistics providers from that definition because they don't hold title. They a product can be delivered to Amazon here Amazon FBA. But as long as they don't hold title and the soul distribution activities in which they engage are receiving those products holding them and then transporting them to the purchaser that that is the way the statutory scheme is intended to work and be interpreted. The first sentence you said in your presentation was that Amazon conducted a swift and effective remedy. What do you think effective means. According to the ample commission evidence in the record, which includes a 2017 recall workshop. Which includes the directive, which incorporates the binding directive, which I put up on the screen, which incorporates a study done by the commission and including and also incorporates numerous comments by compliance staff and others. Effective means reaching every consumer with a message and fully remedying each consumer and that's exactly what was done here, which is why the agency is corporate representative testified under oath during deposition that this represented a 100% effective recall. You use the term 100% correction rate earlier. And so that's what you're talking about 100% of the emails went out, but you don't know how many were opened and you don't know how many products were returned right. Or just sender can never know that it's under the law. There there's case law which we cite in our brief which indicates that an email being sense the presumption is that it has been received in red. And that case law is cited in our the burden is on the commission to establish that additional notice is required to adequately protect the public in light of that triple direct notification the gold standard according to the commission. I have 67,849 unopened emails in my inbox right now. If I try to buy an item on Amazon.com that is FBA, is it possible for me to complete the purchase if the product is not currently in Amazon's possession. You know, say the seller sold out of their stock haven't yet resupplied. Will I be able to complete the transaction for that product. I do not believe so but I will need to double check. Okay, I'd appreciate that and if there's anywhere in the record you can point me to I want to figure that out. And with regard to your 67,000 emails that are on red, I believe me I relate on some level, but you have to contrast the question here is whether additional notice. In the wake of 3 note of direct notifications is required to meet the public is required to adequately protect protect the public against the ordinary course, which is indirect notice. I mean, if you've got 67,000 unread emails in your inbox, how likely is it that a consumer who purchased product a product in a brick and mortar retail store is going to notice some hard copy poster behind the cash register, the sort of old style notification, or how likely is it that they're going to go to the CPSC website to get information about recall. Last question I think I'll have time for here it's not clear to me from the record who assigns a sins. Is it the seller is an Amazon is a mix of both. How could one product be split across multiple a sins. So what does the seller do what does Amazon do. And my understanding is that the third party seller selects the identification number and you know controls the posting of the product offering on Amazon.com. That has no role in in developing the numbers themselves. Well, I suppose, you know, there, there is, they're called Amazon standard identification numbers so they, they make them numbers available, but it's the seller, the third party seller and I'll confirm that selects the asin for that particular product. Thank you. Mr. wall. Thank you, Mr. Chair. Thank you, Miss Wilson. I think if you could stay there that would be great. Thank you very much. I'm going to go back to some of the distribution issues. You posited that Amazon doesn't fall into the definition of district distributor because it does not own the products, even though it provides sellers with everything they need to move the product through the stream of commerce. So I just want to be clear that you're saying that because Amazon doesn't take title, it can never be a distributor, even though there may be other indicia of distribution is that your position. Is correct the title that because it does not take title and because the distribution activities in which it engages. Are limited to receiving holding and transporting those activities that it is a logistics provider under the statute. I just want to maybe it was more of a yes or no. So, if, if, if you don't take title, I was under the impression from your papers that that really was dispositive and you're saying it's a little more gray than that. Certainly title is a material factor and the absence of title takes you out of the distribution chain, but also there are those requirements of the third party logistics provider exception that are met here by Amazon. Okay. Is there a statutory basis for I think you talked about this that there isn't really a statutory basis for the connection to title you're relying on inter case law and common law. No, this the statutory the title is a term is an express term, but does not take title in the third party logistics definition. Correct, but that's in that in that lane but in the distributor lane is what I'm speaking of directly correct the distributor definition and the distribution and commerce definition don't mention having title. But we think it's implied by virtue of the fact that Congress added it to distinguish third party logistics providers in 2008. Right, but there's no statutory direct language on title and distributor. That's correct. Okay. I wanted to call your attention to a sentence in your brief on appeal. It says Amazon continues to leverage modern technology and its role as a marketplace facilitator for third party sellers. But neither the CPSA nor its corresponding regulations were enacted to regulate such facilitator services. So I just want to be clear and I think you've talked about this a little already. Are you saying that because Amazon has created a business model that circumvents the CPSA CPSA does not apply and Amazon has no obligations to protect consumers. If I may just address the premise in that question Commissioner Boyle respectfully. Amazon did not create a business model to circumvent the CPSA this business model that is e commerce is a phenomenon that is utilized by the majority of consumer. I interrupt for one second. It's just not e commerce. We're talking about specifically the FBA program. Correct. E commerce encompasses a lot of things and we're talking today about your your FBA program. Yes, agree. But but that program was not I guess what I'm reacting to is the implication that that model was created to circumvent the statutory obligation. And it just the opposite is the case given what Amazon has done here. It has stipulated to substantial product hazard based on the substantial evidence, including test records and x rays that were transmitted from complaint council to Amazon. It has taken it's taken multiple steps to notify. I just want to I guess I want to get to the point that who gets to decide under this model. It saves CPSA does not apply as you argue. Does Amazon alone get to decide how to protect consumers in the FBA program. I don't think any entity. Amazon has worked very closely in coordination with the compliance staff to effectuate a pro safety pro consumers safety program, but the commission is bound to interpret the statute in accordance with its terms and accordance with Supreme Court case law. In this instance in this program, Amazon, you're saying does get to decide how they're going to look out for the interests of their consumers. I would say Congress has made a decision about how to treat different market participants under the consumer product safety act and the commission is obligated to apply the law consistent with those parameters. Okay, which are laid out in the plain terms of the act. Okay, thank you. I'm also interested in the way Amazon presents its role to in commerce to consumers. In this case, I think the email that Amazon sent that we've been talking about. Already this morning to notify purchases about the safety issues related to the subject product is addressed to quote dear Amazon customer and includes the sentence the safety and satisfaction of our customers is our highest priority. I believe the sellers of the hazardous products are not identified as such in the email and the consumers are told that it's Amazon that is committed to their safety. I'm just trying to understand how the, how are the purchasers Amazon customers. Aren't they the customers of the seller in Amazon's view of the relationship. They are certainly customers of the third party manufactured and sold products, but because the purchases are facilitated through the use of Amazon.com. It seems entirely appropriate and I would think the commission would think this is a good thing that Amazon directly notify customers when the CPSC has indicated the third party product sold on its website by others doesn't meet safety standards. Okay, I appreciate that answer. At oral argument before ALJ Grimes Amazon argued that Amazon marketplaces analogous to a brick and mortar shopping mall where Amazon as the owner of the mall provides services but doesn't sell their products. Would you explain how that analogy helps Amazon fit into the definition of a third party logistics provider. Well, the critical similarity there and I acknowledge that it's not a precise fit, but we're dealing with sort of an innovative business model is that like a shopping mall owner. Amazon through its fulfillment activities does not own the products that doesn't make the products that doesn't sell the products to the consumer. It facilitates the sale it delivers the product conducts other fulfillment activities, but it's not in control. It doesn't hold title to and it doesn't itself it's not able to transfer title to the purchaser of the goods. I mean going back to the consumers that I've been talking about do you think consumers protected by the CPSC consider Amazon to be the same as going to the shopping mall. Do you think that's the perception. Yes, I actually do. Okay, I think most consumers. Now particularly younger consumers utilize e-commerce platforms to make purchases and don't necessarily go to the shopping malls wouldn't you agree that when Amazon rights dear Amazon customer that's not the kind of communication. I would I think that's probably right but again respectfully is immaterial to the analysis of whether they are a third part of logistics provider or distributor. Okay, thank you. I just want to I have only a couple minutes that I wanted to talk about the remedies and you said something and I want to make sure that I understood what you said in your initial presentation. You said that the commission is accustomed to more control in the voluntary recall process which we all understand covers 99% of the recalls that the agency participates in and that we're not accustomed in the mandatory context. I think I mean I may be paraphrasing you to less control. And I would say to you isn't it the opposite isn't it in a voluntary context where there's give and take and there's a negotiated agreement we're in the mandatory context. The commission is in a position of literally mandating action. And so I would say that's more control. So if you could explain to me what I'm missing there. Sure, what I was really referring to is control of the terms and conditions of the remedy, as well as the notification so an entity can voluntarily agree through a protective corrective action plan to particularly when products are not sold directly by the consumers or to the consumers to do social media posts and to make even even have proof of destruction in order to as a as a as a criteria qualifying whether a consumer gets a refund. What I meant by mandatory is that you are obliged to follow the terms of the statute. And on that point, I guess we're I think in agreement that there are two paths or there is this voluntary corrective action plan where which is negotiated with staff typically versus the mandatory path. So door number one, I think the voluntary path was closed and so now we're in door number two and I guess it seems to me isn't Amazon trying to pick a third route by unilateral action that you're now essentially require asking the commission to ratify in a way that it's really not contemplated by the statute. Well, thank you for that question. Throughout complaint council's brief, they use the term unilateral to describe Amazon's pro safety actions painting is somehow nefarious that Amazon would agree to send out all these direct notifications to 100% of the purchase population and immediately refund them. I don't know. But it's non statutory is I think the point I'm trying to make not that nefarious or not is that it's it's not said forth in the statute the choice that Amazon because you're saying the statute doesn't apply you that if I may the statute applies to the commission's ability to mandate additional notice if it's required to adequately protect the public that's a substantial evidence showing that's a burden on the commission. And it's required through substantial evidence to demonstrate that additional some sort of additional remedy beyond what's already been supplied is in the public interest. So yes it is within the statute. I think my time is up. Thank you very much. Thank you. Thank you to council. We're going to turn now to hear from complaint council for up to 45 minutes followed by commissioner questions. So Mr uses please begin bring up. We can bring up our PowerPoint. May it please the commission. Good morning. My name is john uses. And with me or my colleague Serena and on Thomas Mendel and Leon Wolf. We are complaint council in this action. We filed this case to compel Amazon to take remedial action as a distributor of three categories of products sold through its fulfillment by Amazon or FBA program. Karma monoxide detectors that do not detect carbon monoxide children's sleepwear garments that fail mandatory federal flammability regulations and hairdryers that lack immersion protection and therefore present an electrocution ricks to consumers. Collectively these are the subject products. Administrative law judges Grimes and Patil each issued orders that together comprise the initial decision in this case. As noted in the briefs complaint council agrees with the vast majority of these findings. Amazon Council on the other hand has appealed the core legal findings in this case, including the determination that Amazon is a distributor of products sold through its FBA program. In this argument, I will be addressing Amazon's appeal of the finding that it is in fact a distributor of products sold through its FBA program and not a third party to third party logistics provider. My colleague Serena and on will then address Amazon's appeal of the refund remedy that was properly issued by Judge Patil. Thomas Mendel will cover Amazon's appeal of the types and forms of notice that were ordered by Judge Patil, as well as complaint Council appeal of complaint Council's appeal of certain notice issues. I will not be addressing any constitutional issues that you have. Finally, I will explain complaint Council's appeal as to the proper scope of covers of scope of products that should be covered by the remedial order. Commissioners, Amazon is a distributor of FBA program products and subject to federal consumer product protection laws. This statement is not controversial. It is obvious and supported by the plain text of the Consumer Products Safety Act. In this case, Amazon acknowledged that through its FBA program and online sales on Amazon.com, it delivered to consumers at least 400,000 dangerous hairdryers, carbon monoxide detectors, and children's sleepwear garments. And those deliveries are but a drop in the bucket of Amazon's vast distribution network. Amazon's e-commerce gross merchandise volume reached an astonishing 50% of all online sales in 2021, the majority of which are FBA program sales, making it the dominant player and bringing consumer products to the doorsteps of American consumers. Now the CPSA empowers the CPSC to seek recalls and remedies from distributors of consumer products. Amazon's admitted actions placed it squarely within the definition of distributor under the CPSA. Amazon receives FBA products. It possesses them, it stores them, and then it ships them directly to consumers. Amazon's arguments that they are not a distributor rely on semantic gymnastics, a rewrite of the statue, and a downplaying of their actual role in the FBA program. And Amazon, as Commissioner Feldman mentioned, would leave the CPSC without recourse for these subject products and instead force the agency to attempt to work with small manufacturers and third party sellers, often in China, that are incapable of meaningfully engaging with the CPSC on needed recall actions. That is not what the CPSA requires, that is not what the CPSA intends, and whereas here we have a distributor that is available to take recall action, the CPSC has the discretion to seek that recall action from that distributor. First, Judge Grimes correctly found that Amazon was a distributor to the subject products based on the plain language of the statute, which is where this inquiry can begin and end. Next slide, please. Now, distributor is a defined term in the statute. We do not need to reach for references to distributors in other contexts, whether that be as Amazon proposes products liability law or other potential common law constructs. The CPSA provides a precise definition. The term distributor means a person to whom a consumer product is delivered or sold for purposes of distribution and commerce, except that such term does not include a manufacturer or retailer of such product. Included in that definition is the phrase distribution and commerce, and that phrase is also defined and defined broadly. Next slide, please. The term to distribute in commerce means to sell in commerce, to introduce or deliver for introduction into commerce, or to hold for sale or distribution after introduction into commerce. Now these two definitions make clear that there are multiple avenues for a party or entity to be deemed a distributor under the CPSA. First, a consumer product may be sold to a distributor, which may include a transfer of title of that product. But a consumer product may also be merely delivered to a distributor, which does not require transfer of title at all. And once the consumer product is received, if a person or entity receives them for purposes of distribution in commerce, then you're a distributor. It's as simple as that. All you need to do to distribute consumer products in commerce is hold them for sale or hold them for distribution. And here, as Judge Grimes found, Amazon does both in the FBA program and did both for the subject products at issue. The third party sellers do not send their products directly to consumers. Instead, they send them to Amazon. And Judge Grimes correctly found that Amazon is a distributor of FBA program subject products because they are delivered to Amazon, who then held the products for sale or for distribution. Amazon spent a great deal of space in its briefs and a great deal of time today claiming that it cannot be a distributor of the subject products or FBA products because it doesn't take title to them. But Amazon's scant support for this concept lies in cherry-picked products liability cases, almost all of which come from jurisdictions in which title is a requirement to be a distributor to be held strictly liable. And as I mentioned, the commission never needs to get there. As I just explained, distributor is a defined term in the CPSA. We don't need to turn to products liability cases or specific areas of common law to figure out what it means in the context of the act. There is no reference to title or to transfer of title in the definition of distributor or in the definition of distribution and commerce. Congress could have added that reference, but they chose not to. Not only that, but the definitions are written broadly, with the distributor being a person to whom a consumer product is delivered or sold. And as I mentioned, sale could require transfer title, but delivery does not. Delivery just means to take something and hand over to or leave for another. At the end of the day, Amazon's FBA program is designed to distribute consumer goods and commerce. In fact, Amazon's FBA program is designed to do this more efficiently and in greater numbers than any company in the world. Amazon's simple choice to not take title to these consumer products does not allow them to avoid the plain language of the CPSA, which sets out their obligations as a distributor. So the statute shows that Amazon is a distributor of FBA products. But Amazon nonetheless claims that instead it is a third party logistics provider and also that it qualifies for the statutory exception applicable to certain third party logistics providers. Amazon's arguments here on availing, again, because of the plain language of the statute, which clarifies that it is not a third party logistics provider for FBA products. And even if we're to qualify under that narrow exception, it doesn't qualify for the exemption that allows certain third party logistics providers to avoid responsibility under the act. Next slide, please. Let's start here. The statute defines a third party logistics provider as a person who solely receives, holds, or otherwise transports a consumer product in the ordinary course of business, but who does not take title to the product. That's simple. We know, and it's in the record, that Amazon does far more than solely receive, hold, and transport consumer products through the FBA program. Solely is a pretty clear cut word. It means to the exclusion of all else. And Amazon's FBA program involves a multitude of actions by Amazon in bringing these products to consumer doorsteps. Those actions include, and have been discussed today, they create and maintain a highly orchestrated online sales venue at Amazon.com. They process consumer payments. They provide storage, sorting and shipping services. They provide 24 seven customer service. They impose pricing restrictions setting a range and a top end range of how much third party seller can charge for its product through the FBA program. And they offer customer return services. Amazon does all of this while receiving fees that can amount to 30 to 40% of the purchase price of any given FBA product. And Amazon also retains significant rights when it comes to FBA products, including receiving a customer return and potentially reselling the product as a seller through the Amazon warehouse program. In fact, that happened with several of the subject products here. They received a return from a customer, inspected it and then resold it themselves through the Amazon warehouse program. Each of these actions individually places Amazon outside the definition of third party logistics provider because they demonstrate that Amazon does not solely receive, hold and transport consumer products. But collectively, the picture is crystal that Amazon controls the entire transaction and most importantly the relationship with the customer such that consumers buying FBA products on Amazon.com through the FBA program will deal with Amazon and Amazon alone. Amazon attempts to latch on to Judge Grimes finding that third party logistics providers should be able to perform activities ancillary or incidental to receiving holding or transporting consumer goods while still fitting in that definition. That is not what the statute says, but as Judge Grimes himself found Amazon cannot fit its FBA program into even this expanded view. Amazon does far more and it's not even close. Regardless, as you heard from Ms. Wilson this morning, Amazon tries to conflate the definitions of distributor and third party logistics provider such that it can portray its FBA program activities as either ancillary to receiving holding or transporting goods or not in their own constituting distribution. So in Amazon's view, so long as its FBA program activities are ancillary or even if they're not ancillary, so long as they don't constitute distribution on their own, Amazon is a third party logistics provider and not subject to the CPS Act. But the definition of third party logistics provider does not include the word distribution. And in all of the pages of all of its briefs, Amazon fails to cite a single case or a single piece of legislative history suggesting that Congress even considered such an expansive definition for this particular narrow exception for third party logistics provider. I'd like to note that the reference to title in this definition does not support Amazon's argument either. By stating that a third party logistics provider does not take title to the product, the CPSA simply recognizes that entities that would qualify as a third party logistics provider, but who end up taking title to it, no longer qualify. And this proves my earlier point that Congress certainly knows how to refer to a title requirement in a definition. And that requirement does not exist in the definition of distributor or in the definition of distribution and commerce. Next slide please. Finally, we have the exemption provision, which clarifies that even if Amazon were to meet the definition of third party logistics provider, it still would not qualify for the exemption. It reads, a common carrier contract carrier third party logistics provider or freight forwarder shall not for purposes of this act be deemed to be a manufacturer, distributor or retailer of a consumer product solely by reason of receiving or transporting a consumer product in the ordinary course of its business as such a carrier or forwarder. Amazon wrongly portrays distributors and third party logistics providers as mutually exclusive. But the definition here indicates that is not so. A third party logistics provider could also be a distributor, so long as it does something other than receiving or transporting a consumer product in the ordinary course of its business as a carrier or forwarder. Notably absent from the definition is the word holding, which is present in the definition of the word distributor. Amazon simply reads the word holding into the provision anyway, claiming that a company could not receive and transport a product without holding it. But incidentally holding a product as part of a logistics or transportation chain is different than holding a product for sale or for distribution as required to be a distributor under the act. And Amazon maintains these FBA products in their warehouses indefinitely until a sale is held on Amazon.com that itself can market and facilitate and only then ships the products to consumers. Not only that, but the definition here makes clear that the kind of receiving and transporting it's referring to is the kind ordinarily engaged in by a carrier or forwarder. No one is arguing here that Amazon is a common carrier, a contract carrier or a freight forwarder. And Amazon's role in bringing FBA products to consumers goes well beyond receiving and transporting. Indeed, when you look at it, Amazon's role in the FBA program is transactionally comprehensive. Now that we've discussed the relevant definitions, I'd like to bring you back to Amazon's concentric circles diagram slide. Here, Amazon got a few things right and a few things wrong. Amazon correctly sets out in that diagram that any entity that holds consumer products for sale or for distribution is a distributor. In other words, in the yellow portion, the large circle in the diagram. But Amazon incorrectly lists a number of activities that it claims are ancillary to receiving holding or otherwise transporting goods in the green portion of the diagram, the smaller circle. As we've noted today, the text of the statute does not to support this expansion of the definition by Judge Grimes. But even operating under that interpretation, Judge Grimes rejected the idea that these activities listed by Amazon are in fact ancillary. He explained that drawing the line between ancillary closely associated activities and those that don't supplement receiving holding or transporting will require case by case determinations. And then he specifically noted in his decision that in the FBA program, Amazon's processing of returns is not an ancillary activity. Now you may think of processing returns, customer returns as a regular logistics activity and Amazon claims in its reply brief that it is the quote quintessential logistics activity, but not in the way that Amazon does it in the FBA program. Customers will return FBA products to Amazon, not to the third party sellers. And it's Amazon, not the sellers who make the decision on whether or not that product can be resold. Not only that, Amazon has the power itself to sell those products through its own Amazon warehouse program. That's why Amazon's processing of FBA returns is not ancillary to regular receiving holding or transporting activities. Amazon also leaves outside of its circles in the blue portion, both the activities in providing and controlling FBA program sales. Now these activities include operating the website, processing payments, restricting prices and sales, and providing 24-7 customer service. But again, Judge Grimes properly saw these activities for what they are. Okay, they're not ancillary to receiving holding or transporting consumer goods as Ms. Wilson conceded this morning. And they're not distribution on their own, but they are indicative of the overwhelming control that Amazon exerts in the FBA program and additional actions that place it outside of the definition of third party logistics provider and also outside of the exemption provision. Amazon also argues that the 2008 Consumer Product Safety Improvement Act, which added the third party logistics provider definition, was intended to apply to Amazon and its FBA program. Now this argument is just wishful thinking. There's no evidence in the record in the legislative history or in any subsequent case law to suggest that Amazon's FBA program was somehow supposed to be included within the definition of third party logistics provider. More importantly, the actual text of the definition, as we discussed, demonstrates that Amazon is not a third party logistics provider and acts as a distributor in the FBA program. Now looking at all of Amazon's arguments about these provisions, it becomes evident that what Amazon's really trying to do is rewrite the CPSA to its liking. Next slide, please. Here's a red line of what the CPSA definitions would look like if Amazon held the pen. The term distributor would mean a person to whom a consumer product is sold who takes title to the product for purposes of distribution and commerce. They would read out the phrase is delivered entirely. Amazon would write the definition of third party logistics provider to mean a person who, regardless of other activities, receives, holds, or otherwise transports a consumer product in the ordinary course of business. Again, reading out an important term there solely. And Amazon would rewrite the exemption provision to read a common carrier, contract carrier, third party logistics provider, or freight forwarder shall not for the purposes of the act be deemed to be a manufacturer, distributor, retailer of a consumer product by reason of receiving holding or transporting a consumer product or by providing a myriad of other services relating to the sale of the product. Once again, writing out the word solely. Amazon's fanciful rewrite is a bold attempt to avoid review of its actions in the FBA program in total. Amazon does not want the commission to analyze its control, its power, and its overarching role in bringing FBA program products to consumers. But the clear statutory language of the CPSA shows that Amazon is in fact a distributor of FBA products and therefore subject to all of the obligations and responsibilities under the act. And with that, I will turn to my colleague Ms. Anand who will address the refunds that Judge Patel properly ordered Amazon to issue in this case. Thank you. Good morning. May it please the commission. As my colleague Mr. Yousse has just explained, I'm going to be talking to you today about Amazon's appeal of the portion of the initial decision which orders Amazon to issue full refunds conditioned on either proof of destruction or return of the subject products. As you heard from Amazon, Amazon believes that the facts in the in the record do not support the initial decisions refund order. Amazon also believes that the agency does not have the authority to issue additional refunds or to require refunds to be conditioned on either tender or destruction of the subject products. Amazon's appeal is misguided and should be denied because it is in the public interest to incentivize the removal of hazardous subject products from the stream of commerce. And now taking a step back, I'd like to talk to you a bit about the subject products in this case. The subject products are hair dryers that lack integral immersion protection, carbon monoxide detectors that simply do not detect carbon monoxide and children's sleeper garments that fail federal federal flammability standards. The subject products present a risk of both serious injury and death. And telling consumers that they will receive a refund if they send the products back to Amazon or provide photographic proof of destruction of the subject products is essentially incentivizing consumers to remove the products and the hazard that the products pose from their homes. Now in its appeal, and today, Amazon has complained that is already issued gift cards to consumers. But critically, Amazon's gift card did not in any way incentivize the removal of the subject products. Amazon's gift card went out without CPSC input. And we say that not to impugn some nefarious intent, but really to make the point that Amazon's remedial action did not amount to what the statute considers to be a section 15 remedial action. And in fact, as you noted, Amazon did not even track the disposition of the subject products, meaning that they are currently unremedied and unaccounted for in the stream of commerce. Now whether the next slide please. Now whether the commission may order remedial action is set out in section 15 D one of the statute, an excerpt of which is on the slides. The commission may order refunds replacements or repairs if it finds it is in the public interest to do so. And that inherent authority has not been taken from the commission simply because Amazon went out on its own. And the 400,000 subject products that Amazon distributed and that are unaccounted for in the stream of commerce are why the initial decisions refund, which conditions tender or proof of destruction are in the public interest. And Amazon's framing of the remedial action in the initial decision as a double refund or a windfall for consumers really draws our focus to the wrong portion of the remedy. As Commissioner Trump said it brings our focus from a safety concern to a financial to a monetary concern. And that is in line with the fact that Amazon made a business decision to issues to issue gift cards to consumers. And contrary to Amazon's arguments. It is clear based on the record that even taking Amazon's gift cards into account requiring refunds conditioned on tender or destruction is still in the public interest to remedy the substantial product hazard. But have the next slide please. Now, Amazon's appeal also disputes the return and destruction mechanism in the initial decision. But conditioning refunds on either tender or proof of destruction is well within the authority of the agency. And as the record shows refunds conditioned on tender are a simple standard remedy that the agency has used both in previous section 15 litigated cases and in the voluntary context. And the statutory basis for that is on the slide an excerpt of it is on the slide. It says that the commission shall specify in the order the person to whom refunds must be made. And that means that here the commission may specify in its order that Amazon make refunds to consumers who either tender or provide photographic proof of destruction of the subject products. Now Amazon is cherry picked legislative history, which talks about the proof of purchase, but Amazon ignores the parts of the legislative history which discuss Congress deciding to leave the commission with a more flexible approach. Congress was worried that an absolute requirement for tender in every recall might expose consumers to hazards when they're handling the subject products. And Congress was also worried that certain products might simply not be able to be tendered. That is why Congress left the commission with flexibility. And that is consistent with the enumerated purposes of the consumer product safety act, one of which is to protect the public from unreasonable risks of injury posed by consumer products. In, in the matter of RELCO, a previous section 15 case, the commission held that ordering refunds without tender would actually be inconsistent with that statutory purpose, and that tender should be ordered wherever practicable, which here based on the subject products it is. Now, Amazon also makes, Amazon also argues that only section 12 allows for the recall of subject products. Amazon ignores that multiple provisions in section 15 refer to section 15 corrective actions as a recall. That includes section 15 C1D, which refers to corrective actions as a recall. And section 214 of the consumer product safety improvement act, which was the section amending section 15 was actually entitled enhanced recall authority and corrective action plans. Now, section 27 of the CPSA requires the commission to provide annual reports to Congress. And it requires the commission to report on, quote, recall orders under both section 12 and 15. Clearly, Congress intended section 15 to be a recall authority as well. And the commission has the authority to require tender destruction of the subject products. Now that I've explained the kind of statutory predicate in the initial of the initial decisions refund, let me turn to the record. As you heard from Amazon, Amazon believes that there is insufficient support in the record for the refunds to be in the public interest. But there is ample evidence in the record to support the refund. We have the statutory authority to order refunds and we have the evidence on the subject products and the risks of serious injury and death that they pose. Now, to the extent that Amazon attacks individual documents in the record. Again, the commission needs to rely first and foremost on the statutory authority and the facts regarding the subject products and their disposition. The recall handbook and other agency documents simply provide guidance to the commission on the agency's best practices and expertise in conducting these recalls. And they simply provide further support and can guide you in determining what is in the public interest. Now, after carefully analyzing the recall handbook specifically, Judge Patil characterized it as a persuasive document and found that it was entitled some weight and deference based on the factors in United States versus Mead. Judge Patil looked at how the document was prepared as well as how it has been held out by the commission, both in rulemaking proceedings and in hearings before Congress. And Amazon's arguments and dismissal of the recall handbook are without merit. Now, Amazon also showed you a 1992 directive, which actually incorporates a 1984 directive in its site and Amazon cited language from a 1978 study, which Amazon says bans the commission from requiring returns. But that provision doesn't say what Amazon says it says. The section of the directive merely lists factors that should contribute to achieving a high rate of correction or recall. And the operative word there is should the portion of the directive lists suggestions that can and considerations for staff to take into account when they were deciding when case monitoring should end. Now, the page of the directive is actually titled rate of returns. So the idea that it is somehow prohibiting returns while telling staff to calculate a rate of return is simply nonsensical and return of the subject products is not at all inconsistent with the directive. In return has also been ordered in more recent litigation, such as this and magnets litigation and tender or destruction as ordered here by the initial decision presents a minimal burden on consumers. And would incentivize consumers to participate in the recall and remove the products from their homes because they will receive a refund if they do so. In conclusion commissioners, it is practicable here that consumers return or destroy the subject products and the refund ordered by the initial decision is constitutional in the public interest and is fully supported by the statute the regulations and the record. I'll let my colleague talk about the notice provisions of the appeal now. Please the commission I would like to discuss the notice issues that have been raised in this case. So as you know, Amazon has been ordered to undertake a public as well as a direct notice campaign. And that involves a press release posted to Amazon.com social media notice notice to the third party sellers direct messages and a notice banner on the your orders page. Now, both parties have appealed different aspects of this order specifically complaint council is seeking modifications to the social media notice as well as the your orders banner. While Amazon has appealed the direct notice as well as the social media notice, including the requirement that it use its primary social media accounts. I will discuss both of these appeals together here in order to explain why complaint council's proposed notice offers the correct approach under the CPSA. Now at the outset, Amazon has argued that none of this notice should be required because the public has already been adequately informed by the single message that it sent out to original purchasers accompanying the gift card that it issued in this case. This is wrong for several reasons. Next slide please. First of all, the commission's regulations in practice clearly demonstrate that proper safety notice is is not simply a box checking exercise that can be satisfied by sending out a single message. The regulations, for example, specify that at least two forms of recall notice should be used in every case and that the notice needs to be tailored to the specific circumstances at hand. And these regulations are not just aspirational in the record clearly demonstrates that the commission has routinely sought notice even in the in the context of voluntary recalls has routinely sought notice that goes well beyond what Amazon provided here. Specifically at exhibits why Z and AA to the declaration of John Eustis that accompanied complaint councils September 2022 motion for summary decision that's at docket number 80. There at those exhibits complaint council attached numerous documents reflecting the remedies that were sought in 77 recent voluntary recalls involving hairdryers, carbon monoxide detectors and children's sleepwear garments, and those recalls routinely involved the provision of multiple different forms of notice. Now those exhibits include materials that specifically relate to the particular recall that Amazon highlighted in its presentation today on that final slide when it compared the contents of the message that it sent to the contents of a 2020 press release. And what the record reflects is that that press release that Amazon discussed was not the only form of notice that was provided to consumers as part of that voluntary recall. And without getting into the specifics of materials that were filed under seal, it's evident just from the face of the press release itself that the firm there, for example, agreed to provide a toll free hotline for consumers, as well as a dedicated post on its own website. All of this is to say that the commission's practice, its experience and its regulations all presume that proper safety notice under the statute requires something more than sending out a single message, regardless of the strength of that message. And that is particularly true here where there has been no public notice whatsoever, which means there may be secondhand purchasers, there may be gift recipients who've never received any kind of information that a product that they own is hazardous. Now on the question of the strength of the message that Amazon sent out this also fell well short of what was required to adequately protect the public. If we go back again to that 2020 press release that Amazon discussed in its presentation earlier today, in addition to the fact that this press release was not the only form of notice that was provided to consumers as part of that voluntary recall. The content of that press release, despite Amazon's claims today that virtually identical to the 2020 press release, to the two Amazon's message, and that Amazon's message was in fact stronger. If you take a look at that content, you know, it's apparent that there is substantial additional information in the press release concerning the product, as well as the available remedies including a photograph, including a more clear and detailed description of the product, as well as information about the recalling firm. CPSC's regulations specify that the content of any recall notice needs to contain sufficient information and motivation for consumers to identify the product, identify the hazard, and respond and take action. And as this slide reflects the statute as well as the regulations both set forth numerous detailed mandatory content requirements in order to ensure that those goals are met. Next slide please. On this extensive slide, we've collected a number of those mandatory content requirements from the statute and from the regulations, none of which appeared in Amazon's message to consumers. Now there's no need to read all of these in detail at the moment. The idea here is simply to illustrate that this is not an issue of micromanagement or contrary preferences as Amazon has claimed. Rather, this is a difference in kind and Amazon's single message did not even approach the standard for proper safety notice contemplated under section 15. Now, Amazon has argued that it was nevertheless able to sufficiently inform consumers without the need to follow these guidelines. But just to illustrate why the content deficiencies here are not just technicalities. Amazon's message did not include a photograph to assist consumers in identifying the product. It did not inform consumers that there was a risk of death associated with these products. As we've discussed today, it did not contain any motivation for consumers to take action to return or destroy the product, nor did it contain sufficient information to enable a consumer to respond to the message or to reach out for further information or with questions. Now everything that I just mentioned is a specific content requirement set forth in the statute or in the regulations. All of them are reflected in Complaint Council's proposed notice that's been filed in this case. And again, none of them appeared in Amazon's message to consumers. And that is an important reason why notice is still required in this case. Next slide, please. Now, turning to the requested forms of public and direct notice in Complaint Council's proposed order. So in addition to what has been ordered below, Complaint Council is seeking two modifications to the notice provisions of the remedial order. The first relates to social media notice and would require that Amazon make use of featured or pinned posts on social media and also that it do multiple rounds of social media notice. So four rounds total instead of just one. The second modification relates to the Your Orders page and would require that Amazon maintain that banner indefinitely until it's clicked on by a consumer in order to ensure effective engagement with that notice. And for reference, Amazon has represented that that is consistent with their current protocol for the banner on the Your Orders page. So these modifications are fully supported by the statutory and regulatory authority as well as consistent with agency policy and practice. Specifically, section 15C of the CPSA, which is on the slide here, authorizes the commission to order various different forms of direct and public notice when required in order to adequately protect the public from a substantial product hazard. And just as with refunds, this is not a power that is taken away from the commission just because a firm decides to go out ahead on its own and send a message to its customers. Next slide, please. The statute in fact specifically authorizes two of the types of notice at issue on appeal here. That is a public post to a company's internet website, as well as direct messages mailed to each person to whom a product was delivered or sold. Next slide, please. So with that, the statute also empowers the commission with broad discretion to specify the form as well as the content of any notice that it orders. And that is fully supported by the federal case law as courts have held that administrative agency discretion is added zenith when fashioning remedies. So as to social media notice in particular Amazon should be required to take steps to ensure that this notice has an effectively broad reach. And that means not just the use of its primary social media accounts, which Amazon has been ordered to do and has appealed here. That also includes the use of featured or pinned posts, as well as multiple rounds of social media notice. Those requests are entirely consistent with the typical social media notice that's provided in ordinary recalls and all of Amazon's counter proposals and counter arguments here would really thwart that purpose of broad based clear and conspicuous public notice that reaches beyond just the original purchasers in this case. So just to give a quick example, Amazon has requested that the social media notice be limited to its Amazon help pages, rather than make use of its primary social media accounts. But Amazon itself has conceded in its briefs that its customers rely on those primary social media accounts for updates about Amazon's core services. The Amazon help page by contrast is a customer service focus page with substantially less engagement. It's really set up to respond directly to consumers who have Amazon related comments or questions on social media platforms and limiting the social media notice to just those Amazon help pages would really undermine that goal of reaching a broad audience. Now finally, I would like to address Amazon's incorrect arguments that this notice would violate the First Amendment. Very simply put, for the same reasons that the statutory standard is met and notice is required to adequately protect the public here. The central Hudson test of speech regulations is also satisfied. Specifically, that's because there is a substantial government interest in protecting the public from these hazardous subject products. That interest is directly and materially advanced by the requested notice, which would inform the public about the safety concerns here, as well as promote their participation in a remedy that would remove those hazardous products from the hands of consumers. Third, that requested notice is appropriately tailored to those purposes. And again, this is all true even in light of the fact that Amazon sent out that single message to original purchasers several years ago. So for these reasons, Amazon should be ordered to undertake direct and public notice consistent with what's been requested by complaint council, which is all fully authorized under the statute and the regulations as well as the Constitution. And for the same reasons, Amazon's appeal as to notice should be denied. Thank you. And we'll next discuss the scope of products covered by the remedial order. Thank you, commissioners. Complaint Council appealed Judge Patil's proposed scope of products in their remedial order to meet a simple goal. Complaint Council wants to ensure that the subject products which pose substantial and life threatening hazards to consumers are removed from homes and totally out of the stream of commerce. As you can see, we have defined we propose to define the term subject products as the products identified in the administrative complaint, including cosmetic variations of those products that present the same substantial product hazards. This should not be an issue in dispute. Contrary to Amazon's protests, we are not seeking to apply the remedial order here to a class or category of products. Rather we focus on products that are the same as the products identified by Amazon product listing in the complaint. That's it. And it's worth noting that same is a concept that's supported by the CPSA, a product with mere cosmetic variations to a product identified in the complaint that poses the same substantial product hazard is the same under section 15 of the act. Judge Patil initially recognized this in his May 8 2023 order in which he stated that the children's sleepwear garment products covered by the remedial order should include products that are but a mere alteration of a children's sleepwear product identified in the complaint. That's it docket number 109 at page 30. He went on to explain there that quote, for example, one is red and the other is blue, or one is a smaller model and one larger, but all presenting the same substantial product hazard and quote. That is what the complaint count what complaint council seeks to cover with its proposed scope of products in its offered remedial order. Now, while Amazon has protested this common sense scope, it does not impose any unique obligation on Amazon. For instance, every company is under an ongoing obligation to not sell or distribute to consumers children's sleepwear garments that fail mandatory flammability regulations. Similarly, every company is under an obligation not to sell or distribute hairdryers that lack required 15 J immersion protection. Amazon already has a duty to ensure that those products are not distributed to consumers through the FBA program. And under the, under the proposed remedial order in this case, Amazon will be obligated to not distribute to consumers through its FBA program products that are the same as those they admitted to presenting a substantial product hazard. And again, Amazon's obligations in this regard would be the same as any company conducting a recall. It's also worth noting that Amazon's obligation under section 15 does not impact the CPSA burden under section 19. If, for example, the CPSA was to investigate Amazon and pursue a civil penalty for Amazon selling a product that is the same as one of the subject products, the burden would be on the CPSC to demonstrate that that product is in fact subject to the remedial order according to section 19A2C. For these reasons, we urge the commission to adopt the remedial order we have provided in our briefing. In conclusion, it's important to remember that Amazon distributed the hazardous subject products through its FBA program. Amazon created the FBA program business model and Amazon's legal obligations are the same regardless of its size or the volume of products that it distributes through that program. Thank you commissioners and we're now take any questions that you have. Thank you council. We're going to now turn to questions from commissioners and start with myself. Well, actually, I'll just do this generally because I don't know who's going to want to answer. Part of the pleadings that have been put out there in conversation today has been about the recall handbook. What's the history of the book? When was it first put together and how what was the thought process and put together and how is it currently used? Thank you chair. I believe my colleague Ms. Anand will be able to answer that question. Thank you for the question. The recall handbook was announced to the public on the 1st time in 1989 actually by then acting chair and grim. It was put together. She explained to advise the public on what the agency expects and recalls. It's been updated a couple of times since 1989 and expanded on. But the goal of the recall handbook really is to provide a open process and to give regulated entities an idea of what the agency expects. And what is put into the recall handbook and what's the process for staff to update it. It was last updated in 2021 and I know that it was a process worked on by multiple members of staff. I'm not entirely sure. What the exact process, but the agency has explained in its rulemaking proceedings that it's a document that really. Demonstrates the expertise of the agency and conducting recalls. It talks about the goals of the recall, you know, which includes to remove hazardous products. Provide notice early provides examples. It even provides the templates of all press releases at the back of the document. So it's really trying to provide the agency's expectations and it's based on our expertise. Shifting actually the 1st amendment side of things. So both. Amazon plans council have talked about central Hudson, but the ALJ cited Zodder. And I had asked Amazon's council about the applicability and as well. And so I want to ask you on thoughts on Zodder as applied to this particular situation. You know, it's it's not an argument that we have relied on in this case because it's it's a, you know, a more lenient standard, I guess, than central Hudson and complain. Council's view has been that the central Hudson test is satisfied. Therefore, the Zodder a test would also be satisfied. It may well have applicability to this case, but we could provide some additional briefing on that if you're if you're interested, but it's, you know, we've operated under the central Hudson standard through the majority of the briefing. And again, you know, because of that standard is easily satisfied here. The Zodder standard would also be met. Looking forward on. Actually, I'm going to at this point I'm reserve my time the questions and turn to my colleagues or. Thank you, Mr. Chairman. And again, thank you for the presentation. I don't know if this is a dress to Mr. Mandela is a non, but I wanted to ask about the section 15 D remedies. That would be, I think this and on great help you there. So section 15 D of the consumer product safety act gets into a menu of remedies that the commission has available to it. And 15 D one a has a conformity option that's available to the commission would. Tender or destruction of a violative product be sufficient to satisfy the conformity option under 15 D one a. I believe that that option is mainly intended to bring products into conformity with a rule or regulation. I don't believe that we've briefed on that issue, but we'd happy to take that into consideration and provide you with an answer. Okay, for example, could the commission require that a distributor destroy a product in order to bring it in conformity with an applicable ban. I believe that would be feasible. Okay. So if that's the case, why then, given that section 15 authorizes the commission to take one or more of the, the, the listed actions with the commission be somehow prohibited from requiring a refund remedy. And a destruction remedy if the commission were to make the determination, for example, that both would be in the public interest. I believe we focused on section 15 D two as kind of the commission may specify disorder as providing that authority, but we'd be happy to look into whether we would have that authority and we definitely can provide more than just one remedy the commission may order a refund and then even go back and order a separate remedy. All right, so assuming that the conformity remedy under paragraph a includes tender or destruction, does the public interest language of section 15 D allow the commission to condition the refund remedy under paragraph C on the fulfillment of the conformity under under under a in order or in other words, might the commission issue an order that that you know is consistent with with section 15 D, but you know, requiring for proof of destruction or tender in order to avail itself of the of the of the of the refund remedy. The public interest kind of questioning is based on the hazard posed by the subject products, given that they pose a risk of serious injury or death, and that destroying the products, you know eliminates that hazard. I believe that it would be in the public interest to require destruction of the subject products to bring them into conformity. Okay. In the respondents appeal brief, Amazon argues that it provided full refunds to the original purchasers of the subject products. But it did so by providing Amazon gift cards, regardless of the original form of payment. It didn't recredit consumer credit cards on file for example, and in its brief Amazon instructs that we should look to the dictionary definitions for in order to discern the plain meaning of statutory terms and helpfully provides the Oxford definition of refund, which quote, simply means to reimburse or repay a person doesn't reimbursement mean a refund in the original form of payment, rather than a store credit equivalent. I believe it could a complaint council hasn't again hasn't really briefed on that issue, but consumer consumers will be in the public interest to ensure that consumers really are incentivized to destroy the products and if, you know, reimbursing their original payment method is more effective than a gift card. And guess what I'm asking this section 15 contemplate contemplate that a recalling firm has unilateral discretion over the form of refund. Are they able to, you know, are the gift cards that were issued under section 15 were they issued pursuant to section 15 and and are they essentially just a courtesy credit or is that an actual refund under the terms of section 15. So first off, Amazon going out on its own on its own and issuing those gift cards is not was not issued under section 15 it was not a section 15 remedy. You know it was not done in consultation with the Commission it was actually done before this proceeding had even commenced. So it was not a section 15 remedy. The Commission may specify in its order how the refunds or whatever remedy at orders are provided. But does Complaint and Council dispute whether or not the Amazon gift card is an actual refund. My council doesn't consider Amazon's gift card to be a refund. Yeah. Thank you. On the question of the subject products. Why didn't Complaint Council simply test and amend the original complaint with respect to the additional products that sort of fell beyond the Amazon stipulated subject products. Thank you. Thank you, Commissioner Feldman. The the administrative complaint listed the the offending products by Amazon product listing by Amazon standard identification number. We in discovery with Amazon found that some of those ASINs were in fact parent ASINs through which the products weren't actually sold instead they were sold through child ASINs. So but the child and parent ASINs have that that kind of relationship where you know a parent ASIN maybe a placeholder whereas the child ASINs are all of the red blue or green children's sleepwear garments as a potential example. The testing that was done by CPSC staff related to those specific Amazon standard identification number product listings. The definition that we've now provided in our proposed order simply makes clear that referring to products by product listing is limiting it's overly limiting and it's not what section 15 means by the term product. And that's why we've proposed same product because we it's it's products that present the hazards to consumers not product listings. I hope that makes sense. But would the commission be creating a due process concern by holding a firm liable under section 15 for untested products that weren't jointly stipulated or even referenced in the underlying complaint or otherwise identified in the process of developing the hearing record. Certainly not not in the way that we've limited the definition of subject products in our proposed order. In our proposed order it makes clear that the subject products are the subject products listed in the complaint and those with only cosmetic variations that still present the same substantial product hazard. So it has to be cosmetic variation presents the same substantial product hazard. So in that way it is functionally the same product. But couldn't you have tested those products. And then and then and then amended the complaint. So you're suggesting that we could test every red green yellow beige striped children sleep or garment as opposed to to the sleep or garment that we identified under a product listing. Yeah, I'm not I'm not suggesting I'm asking the burden would be enormous on the agency to test every single product that is the same that is the same as the product that we identified as hazardous. I don't think that's possible at the same time if you would like us to look into it we could provide additional information and briefing on that issue. Okay. I would you have the balance of my time. Thank you. Thank you. Mr. Trump. Thank you. Amazon's email notice to consumers did not include the word recall. And while I understand you assert other deficiencies with the notice. Why do you consider using the re the word recall so important and is failing to use it pose independent grounds for finding the email notice deficient. Thank you for the question. Commissioner Trump I believe my colleague Mr Mandel can answer it. Thank you so yes in terms of the requirement of recall, you know this like many of the others that I highlighted earlier they are the requirements that are set out in that one's in the regulations actually. So just, you know, for the arguments that I made earlier for the reasons that I made earlier. The fact that Amazon's email is so deficient missing many of those different content requirements shows why notice is still required because it fell so short of the standards in terms of just recall. Specifically, that is also a very important requirement just standing on its own because it announces to consumers something important about, you know, the fact that that there's a remedy available. For example, you know, there's a there's a an understanding by consumers and I think that's part of the reason that this is required when I go through those the regulations and that they require consumers to be able to identify the hazard and to respond and take action. I think recall goes to sort of that last factor of helping consumers understand what the next steps are and that there is a remedy to potentially participate in and that there may be more information to receive. So even just that one regulation is a very important one to signal to consumers how seriously to take it and that there may be in this case that there would be an additional action to take to return or destroy the product. And Amazon's email notice the specific one for hair dryers. It said that the products quote may fail to have mandatory immersion protection. Does the record evidence show that they might have lacked immersion protection or that they did lack immersion protection. Well, it's been stipulated that certainly that these products all meet the requirements for substantial product hazards so that's not in dispute at all. As far as I'm aware, the record does show that that they lacked immersion protection. But again, that's that's all been stipulated to and is not in dispute. You've asked us to order two rounds of direct notice from here here forward. How common is that with CPSC recalls. And can you explain why in this case particularly directing two rounds might be appropriate. Certainly it is common practice currently and certainly in the context of voluntary recalls for the CPSC to seek multiple rounds of direct notice. I described, you know, first of all, the authority is there for the commission to really specify the form of the notice that's required. And in the specific circumstances of a case, it may be required to adequately protect the public to send multiple rounds of notice. And that's what is required here. We think that's been shown. Now, one of the reasons is first of all that these that there's never been any notice proper notice to the to the level that's contemplated under the statute and the regulations that's been offered in this case. And so for that reason, it's important to, you know, really make sure that that notice is reaching as many people as possible. And many of the people who may have received information about this previously have received in some ways incorrect information that didn't properly convey the hazard. And for that reason, it's particularly important to ensure that that they fully understand, you know, sort of the risks here the risk of death and serious injury, as well as the available remedies. And it's also true that there's, you know, evidence in the record in terms of the recall effectiveness workshop and other things that complaint counsel has cited to that show that multiple touch points are particularly effective in getting the message out to consumers. And so that's another concern there with multiple rounds of notes. I appreciate that. Mr. Eustace on scope, do you argue the products in Amazon exhibit 130 are the same as products in the stipulation? And if so, what support for that is there in the record? Amazon chose to take the same actions with respect to the products listed in exhibit 130 that they took with respect to the products that we identified in the complaint, sent out the same kind of communication and issued the same refunds. Based on those actions, we have treated them as the same as the products that were identified in the complaint and therefore subject to the proposed order. Now, about those products listed in 130, aside from the fact of Amazon's voluntary takedown, is there any independent evidence that they pose this substantial product hazard? Amazon's representations about what exhibit 130 is and what they, what constitutes the products and what kind of hazards they pose, those are the stipulations and the admissions that we're relying on and including them within the proposed order. Now, beyond the scope of exhibit 130, can you point to any evidence in the record to show that you've identified any other specific products that are the same as those in the stipulation? I can. In the statement of undisputed material facts that accompanied our motion for summary judgment before Judge Grimes and then again before Judge Patil, I can't give you a paragraph number. About 66 to 179? I believe it's 166 to 179. Yes, we have identified specific products that are the same. Yes. Okay. And what evidence can you point us to that demonstrates that any of those units pose substantial product hazards? Those were tested and found to present substantial product hazards to consumers. So, all right, if we decide that you have provided evidence that products not explicitly identified in the complaint, pose a substantial product hazard. Is there any reason we couldn't include those in the scope of our final order? Okay. In RELCO, the commission ordered a company to stop distributing a specific model of defective welder and similar models that contain the same defect that was responsible for the product hazard. Does RELCO stand for the proposition that once a defect is identified, an order can cover all similar products from that manufacturer or that distributor containing the same defect? Commissioner Trump, RELCO accurately describes the discretion and the breadth of the power that is invested in the commission to ensure that substantial product hazards are remediated and removed from the stream of commerce. Now, we have moved away from the argument that Amazon should also be ordered to take action with respect to similar or what we have called functional equivalent products. And we have streamlined our proposed scope of products so that it may be easily understood, enforced, and executed, and it is unquestionably supported by the language in section 15. So, while Amazon certainly possesses the capability to identify and take action with respect to similar products, that's not part of what we are seeking in our appeal. Well, imagine I said the same products then. Does RELCO stand for the proposition that if you identify specific products that have a defect, can in order cover the same products that have the same defect that aren't specifically identified? Yes, and I would add that section 15 itself supports the concept of issuing an order that covers the same products. Well, is there any evidence you can point to in the record that would show Amazon's ability to identify other products that are the same as those you identify to them? Well, Amazon's statements concerning the products that they identified in Exhibit 130 certainly goes to that capability. There's deposition testimony provided by Amazon's 30B6 witness, Suggy Goldberg, where he discusses the processes that Amazon goes through in terms of identifying potential hazards to consumers. You talked about pricing controls and you said that Amazon sets a top end range on prices. Is there a specific percentage above which they don't allow prices to deviate and how does that process work? Commissioner Chomka, I have not recently reviewed the most recent revisions to the FBA program provisions. I can't tell you exact percentages, but I do know that the pricing restrictions suggest that a seller through the FBA program can't charge a higher price to Amazon customers than it charges anywhere else. I asked Ms. Wilson how she measures recall effectiveness since you made the first line of her presentation. She said sending emails to all purchasers is a 100% effective recall regardless of what happens after sending. How do you measure effectiveness? The agency would measure a correction rate based on the actual removal of the hazard from consumers. Sending a refund as my colleague Ms. Anand mentioned is a monetary concern and not a safety concern. The important part of a notice as my colleague Mr. Mandel explained is incentivizing and making sure that consumers take action and remove the product from their homes. Okay. The ALJ rejected your request for Amazon to notify the commission before it disposes of returned products, which would give you an opportunity to observe destruction. Is there any evidence in the record showing that hazardous products might be sent back to sellers or resold instead of being destroyed? Yes. There is evidence in the record in the admitted statements of undisputed material fact that several of the subject products were received by Amazon and resold through the Amazon warehouse program. Appreciate it. Thank you. Commissioner Wall. Thank you, Mr. Chair. Thank you, Mr. Eustace. There's been a lot of discussion of the word solely. And I believe the ALJ suggested that taken to its logical conclusion, your argument is silly. And I believe Ms. Wilson has made a reference to that today. I think he used as an example the question he posed as to whether you could, somebody could inspect a product. And the ALJ said, I don't know if it was you, just as complaint counsel resisted answering that question. And so I pose it to you again today. And do you want to answer that now? Well, as we explained at the hearing before Judge Grimes, solely means solely. It means to the exclusion of all else. The statute is very clear on that front. Now, we have not expressly appealed Judge Grimes finding that ancillary or incidental activities to holding, receiving or transporting goods could somehow allow a company to still fit within the definition. However, solely means what it means commissioner Boyle and you know, the statute stands on its own and can be interpreted in that light. Okay, so you're not changing your position and you don't agree with the analysis that the determination hinges on the difference between ancillary and supplementary just to be clear. That's correct. Okay. All right, thank you. And on the functional equivalent versus same discussion that has just been taking place. I want to make sure I understood what you just said. Did you make a distinction between same and functional equivalents? Well, there is a distinction potentially between something that we say would be, I think, hearkening back to the relco case similar versus the same. We have provided an actual definition of the term same in our proposed order that products are the same when they have cosmetic variations from the subject products listed by Amazon product listing the complaint, but present the same substantial product hazard. Okay, and I think the question was posed to you about how we would go about identifying those products and you answered about comparing all their different colored pajamas and that it would be a burden on the agency. Are you saying that Amazon should have the burden by virtue of what we order here to do that? Just to be clear. To be clear under an order issued by the Commission, Amazon has an obligation to ensure that the products that present the substantial product hazards are not distributed. So that obligation does not change with respect to, you know, products that are the same as those products. Okay, that's our contention. Okay, thank you. Switching topics a little bit in your reply brief, you contend that Amazon wrongly implies that a heightened evidentiary standard applies to the Commission's remedy determination under section 15. Would you elaborate on that statement, please? And on your view of the applicable standard. Okay. Thank you, Richard Boyle. I may have you back, but well, Mr. Mandel, thank you. As to the evidentiary standard, I guess that comes up in a few different contexts. I'm not, I'm not sure if there was a specific one that you had in mind, but specifically this idea of substantial evidence. And the, I think Amazon has wrongly sort of characterized this as something that requires a quantitative study statistical analysis to underlie every single decision that or every single order that a commission might make. And that is simply not what's required under the CPSA or the APA. Again, for what we've been talking about today in terms of remedies, the CPSA sets forth these discretionary standards of public interest required in order to adequately protect the public. And as I mentioned, the case law suggests that administrative agency discretion is added Zenith in exactly this stage where we're dealing with the fashioning of remedies. And there is no case law that suggests that there is some kind of, you know, additional requirements to independently justify all of those remedies with a study or statistics, particularly here where the studies are, you know, in many cases in terms of the content of the notices specifically authorized by the statute itself. And the other cases all as we demonstrated fully within the bounds of the statute and the regulations as well as consistent with what the agency normally does in both voluntary and mandatory recalls and so this is not, you know, an example of an extreme case or something that would require special justification. Okay, thank you. I appreciate that answer and I think this question may also be directed to you it is about the remedies and what Amazon has already done. In terms of notifying customers and providing a gift card. Just do those actions play any role in assessing what's in the public interest. How should we look at it from the commission's perspective should in terms of what's reasonably required to act in the public interest and to protect. Yes, commission. Well, they do play a role. I think both public interest and required to adequately protect the public the statutory standards. These are fact specific standards. And so they do require, you know, taking into account the specific circumstances of the case, which is the nature of the hazard. The volume of products, you know, how they were distributed, how they were given to consumers in the first place or how they were marketed and advertised to consumers. The regulations specifically speak about, you know, taking that into consideration as well as the capabilities of the firms. And of the of the recalling firm. And in this case, I think complaint council has shown that despite