Tanya J. Monestier of Buffalo has written Amazon’s Dirty Little Secret, 69 Villanova Law Review 521 (2024). Here’s the abstract:
You need new earbuds because one of yours just went missing. You log onto Amazon and scroll through the endless array of options. You finally select a pair “Sold by” Amazon and click “Buy Now.” Amazon promises to have the earbuds to you tomorrow. Have you ever wondered how it’s possible for Amazon to pull off this Santa-like feat? It’s because of a little-known practice called commingling. Commingling gets you your earbuds in near record time. But commingling could also result in your getting earbuds that are duds-or, worse yet, that malfunction and cause ear damage.
Commingling means that the same goods from different sellers are stored together and then sold interchangeably. The theory is great, so long as these goods are truly interchangeable. All it takes, however, is for some bad actors to co-opt the commingled supply chain and those goods are no longer interchangeable. Some goods are real. Some are fake. Some are junk. Some are dangerous. When you order something on Amazon, you don’t know what you’re going to get. You are told that goods are “Sold by” Amazon, but the actual goods you get may be from a shady third-party seller based in Shenzhen, China.
How can Amazon do this and not tell its customers? Good question. In this Article, I argue that Amazon should no longer be permitted to get away with its secret practice of commingling. Telling a buyer that they are getting goods from Seller A and then giving them goods from Seller B is deceptive-plain and simple. The law should not countenance such a practice. At the very least, Amazon should be required to disclose its practice of commingling before a buyer makes a purchase. It’s time for Amazon’s dirty little secret to be exposed and to let consumers decide for themselves whether they want to continue buying from, or on, Amazon.
