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throw20102010

Amazon needs to stop with inventory comingling. They know it and refuse to stop, so they are culpable. I'm sure it would hurt their logistics to stop, but it also hurts cigarette companies to not advertise to children and we made that a law.

It is ridiculous that you can order a supplement where it says "sold by Proctor and Gamble, fulfilled by Amazon" on the product listing, and then receive a counterfeit product that was sent in by a different company. If they received it from a different company, then it wasn't "sold by Proctor and Gamble."

At the very least they need to give brand owners the tools to protect their brands- an option to put non-authorized resellers' shipments into a separate comingled bin, and have all the authorized resellers in another.

Right now the only option for a brand with a popular product to protect from counterfeiting is to not sell anything through Amazon and sue everyone that tries to list your products on Amazon- which might not even work and really hurts your market reach.

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Amazon are playing a very dangerous game with their brand.

I buy a lot of stuff from AliExpress. I know that there's a fair chance that I'll get some kind of junk, but it's cheap enough that I'm often willing to take the gamble.

Until very recently, Amazon offered the lowest-hassle online shopping experience by a considerable margin. I'd often buy from Amazon without bothering to compare prices, because the convenience of one-click ordering was worth it.

Almost entirely because of Marketplace, Amazon is regressing from a premium retail experience to an AliExpress-style flea market. Every time I click the buy button, I worry about getting a counterfeit product, I worry about the hassle of returning it, I worry about getting banned from Amazon by an algorithm for "abusing" their returns policy. Buying from Amazon isn't a no-brainer any more.

Amazon were so very close to having a total monopoly on my online spending, but they squandered it. They could have secured a loyal and price-insensitive customer, but instead they're driving me away from their platform. Maybe they don't care about being a retailer any more, maybe they're all-in on AWS, but if I were an Amazon shareholder I'd be getting pretty damned nervous.

Same. In fact, I basically only use Amazon as an AliExpress with free 2 day shipping. For anything that could be counterfeited (which is really anything these days!), I won't touch them anymore. B&H is the same price and I can always show up at their store and be annoying until they fix my problem.

“Free 2 day shipping” = prepaid unlimited 2 day shipping that costs $120, and is bundled with some streaming content.

If AliExpress wants to cap my yearly 2 day shipping fees to $120/yr, I'd take that deal.

Or if you're into Amazon's streaming video offerings, it's like paying for the video and getting the shipping for free.

B&H is certainly better, but I've occasionally gotten something that was obviously open box from them and its always a bit of a pain to convince them this is a problem. It came to a head recently complete with a salty response from their social media guy on Twitter and a complaint to Anton Bauer about used product being sold as new.

I'm in the same place -- Amazon sold me a counterfeit charger. Well, not counterfeit, but with a fake ETL/Intertek -- a UL competitor -- mark. I told their CS and they refunded me, then continued selling the charger with the fake ETL mark.

I moved $40k/year of IT spend from my company off Amazon to BHPhoto.

I also stopped buying any makeup / food / supplements / dog food / dog toys on Amazon.

Hell, I bought my dog's new leash and collar straight from the manufacturer!

We make speaker wire and sell it primarily on Amazon, so I have some experience on the manufacturer side of UL/ETL marks. My advice is to never buy any product with an ETL mark. As an organization, they are way less stringent about enforcing the integrity of their mark. And I would also never buy anything at a low price tier that bears a UL mark, since it’s probably counterfeit. If you want quality, pay for it. When you pay for a brand which markets on quality at a higher price point, there’s a pretty good chance you’re getting something legitimate. The reason is that it’s hard to compete at a higher price point, so honesty is probably the only reason a brand would willingly choose to scale that kind of a barrier.

> When you pay for a brand which markets on quality at a higher price point

I think what others are saying is that you can't do this on Amazon, even if you want to, because of fakes.

I've personally moved all my online shopping to Target and Walmart, and I only buy products that they stock in their stores.

If you’re buying from the manufacturer and there are no other sellers, then you’re fine on Amazon. Where you have to watch out is when there are multiple sellers on an item.

It seems like a lot of things that sound an awful lot like fraudulent practices from a lay perspective don't actually reach a useful or provable definition when it comes to legal liability.

But saying something is sold by a specific party which I then choose to do business with, then substituting goods that are likely to be from any of numerous other parties, some of which I may be explicitly trying to avoid doing business with...I would at least be interested in hearing why that doesn't count as fraud or false advertising or some such, or maybe some trademarks issue.

At least, I'd love to hear a less rage-inducing justification for putting up with allowing this behavior than "it was buried in a ToS somewhere that lying about who my goods came from is okay, actually."

That phrasing is part of the problem, not the solution. You're conflating the idea of a manufacturer (Proctor & Gamble in this case) with a reseller. Amazon tells you both, but since the retail products are (should be) identical, neither they nor you really care whether or not this particular box came from "Joe's Nutrition" or "Sally's Supplements", and worrying about that distinction is like arguing against the fungibility of money (did that dollar bill in your pocket, which you got from an ATM, "come from" your job or your side gig?).

It's not the comingling that is the root cause here, it's the fraud. It doesn't matter whether or not Amazon buys their pills from Joe or Sally, what we care about is that they're not selling fake pills. Focusing on comingling seems to be missing the point. We have even less ability than Amazon to detect the fact that Joe is selling fake pills, so they'd still make it into people's mailboxes.

>Amazon tells you both, but since the retail products are (should be) identical, neither they nor you really care whether or not this particular box came from "Joe's Nutrition" or "Sally's Supplements"

Sounds like it is time for a "Falsehoods Programmers Believe About Retail Products" with the first entry being that every item with the same SKU is identical to every other item with that SKU.

You would think at the very least Amazon would need to maintain a chain of custody for each individual item that is meant for human consumption. What happens if there is a Tylenol poisoning [1] like scare with one of these supplements? Would Amazon legitimately have no way to track down the source of the contaminated product? If they can, what would be the possible explanation of not displaying the source to the user beyond "it is cheaper if we don't"?

[1] - https://en.wikipedia.org/wiki/Chicago_Tylenol_murders

It's not just products for human consumption that can cause injury. A shoddily made counterfeit phone charger can start a fire and burn down your house.

> worrying about that distinction is like arguing against the fungibility of money (did that dollar bill in your pocket, which you got from an ATM, "come from" your job or your side gig?)

That's an interesting argument except for the fact that the source of money is extremely important for fraud and tax purposes. Money laundering is specifically the co-mingling of "inventory" to hide the source. Amazon is product laundering.

When the product comes from "Sally's Supplements" then if there is an issue with the product then that's first and foremost Sally's problem. It might go up to Procter & Gamble or maybe it doesn't get that far.

The source of the product and who supports it is very important.

Counterfeiting is going to happen. Typically you deter it by detecting it and punishing the counterfeiters. Commingling defeats this. I guess we can make Amazon inspect everything they receive from third party sellers thoroughly enough to reliably detect counterfeits themselves, but that seems much less likely to happen.

Well, one can think of it as follows:

1. You place an order from supplier A.

2. Supplier A buys the unit from supplier B (and pays the balance by transferring another unit A => B).

3. The now supplier A's unit gets sent to you.

I.e. somewhat similar to e.g. dropshipping and other such practices which are traditionally perfectly legal.

It seems it would be quite hard to argue false advertising on that (as you got the item from A - generally it does not matter who A got it from, unless A claims to be the manufacturer), which I guess is why it has not happened yet.

But I could still see it happen, especially if the counterfeiting problems worsen. Maybe the fact that Amazon does it automatically for the sellers (with their approval) could be considered a factor that makes this different from the traditional stock supply cases.

There’s a huge and fundamental difference between what you describe and what Amazon is doing. What you describe involves both A and B. A is figuratively putting their name on the product, and they have an incentive to make sure that everything is above board. You are getting it from A, by way of B.

The way Amazon does it, A isn’t involved in the choice of who supplies the product, they just receive the money. They don’t even know who supplied the product, if I understand things correctly. You’re just buying from B, while Amazon says you’re buying from A.

I'm a former marketplace seller. There is a way brands can accomplish this: marketplace items must contain all the features that the original brand provides. So the brand can create, say, a warranty that only applies when purchased form an "authorized seller". Since the company controls who is authorized, no other seller is able to include the warranty, and their offerings are not identical.

The difficult part in all of this is dealing with Amazon and their terrible marketplace back end.

> marketplace items must contain all the features that the original brand provides

Why should a buyer be expected to trust either Amazon, or the fulfiller, to decide which bait-and-switch sales don't count as bait-and-switch?

It wrongs both the buyer, who doesn't get what they ordered, and the original manufacturer, who is being subjected to something akin to 'passing off' in trademark law. You aren't allowed to hijack someone else's brand to sell your product. [0]

[0] https://en.wikipedia.org/wiki/Passing_off

> Amazon needs to stop with inventory comingling. They know it and refuse to stop, so they are culpable.

An appeals court just recently said this in their ruling on a consumer products liability case. Oberdorf v Amazon I believe.

Edit: Apologies, I was on my phone earlier and I didn't link to the opinion https://law.justia.com/cases/federal/appellate-courts/ca3/18...

Yes.[1] At least in Pennsylvania. This decision is based on state law. Amazon claims to be insulated from product liability claims because it is not the "seller". The Third Circuit says Amazon is the "seller". "Amazon not only accepts orders and arranges for product shipments, but it also exerts substantial market control over product sales by restricting product pricing, customer service, and communications with customers."

Amazon can in turn sue the party who provided the product to recover what they have to pay out to the end customer, if they want.

Amazon allows their product providers to be somewhat anonymous. That weighed against them in the court decision. To the court, that looks like a retailer-wholesaler relationship. An actual seller has to disclose the actual name and address of the business in some states, including California. (B&P code section 17358).

[1] https://www2.ca3.uscourts.gov/opinarch/181041p.pdf

> At least in Pennsylvania. This decision is based on state law.

Only in part. Section B @ page 21 is the Court outlining their reasoning under the Second Restatement of Torts which has been adopted in some form or another in most states. The court could have ended with the Pennsylvania four-factor analysis but the ruling would have definitely been limited in scope. Instead, the 3rd Circuit has anticipated this case going to the Supreme Court and went through the effort of detailing the logic for a SCOTUS ruling that would hold Amazon accountable beyond the boundaries of Pennsylvania as well.

> At the very least they need to give brand owners the tools to protect their brands- an option to put non-authorized resellers' shipments into a separate comingled bin, and have all the authorized resellers in another.

As a brand I think you can stop others listing your products. I tried to sell something a while back and was refused because I was a third party seller.

I should have known this would be used as an excuse to even further expand corporate control at the expense of individuals. Now they're trying to use it to restrict the second-hand market.

Instead of making it clear you're buying second-hand goods, or from a non-authorized seller, they are deliberately conflating what you're buying, with who you're buying it from. This way their anti-counterfeit efforts will conveniently squash the second-hand market.

On the flip side, for many brands, if it’s being sold by someone other than an authorized reseller, it is almost certainly counterfeit. We have a private label brand that sells on Amazon. If anybody else is selling our products at the same prices we sell them for, then it is almost certainly a counterfeit, since we only sell at retail prices. The only exceptions would be somebody selling one of our products used. But then we offer a lifetime return policy.

And believe me, as a seller I have some insight into the bullshit black hat tactics at play in the Amazon marketplace. Amazon needs tools to fight the bad guys. For the sake of consumers.

Aside from counterfeiting, it's become a hassle to buy from the marketplace. My last experience was buying a small piece of furniture. There was a problem and it could have been resolved more easily than it was, but as inconveniences came up I had to deal with both Amazon's and the vendor's customer service. And each blamed the other. Ultimately I had to pack up something heavy to be shipped back which I didn't want to do, and if I had to do it it would have been less hassle to take it back somewhere local. Which is how I wish I had made the purchase.

They could require all suppliers to put up a surety bond. Make the amount high enough to filter out suppliers unwilling to sell long-term and also attempt to filter out anyone intending to sell counterfeit goods. Any suppliers who hit a certain threshold of failing to meet Amazon's standards of product authenticity would forfeit their bond. This isn't a new idea, it works well in other industries.

There's a whole class of items I won't buy from Amazon. Supplements are one of them, I buy direct. Given how easy it is to set up a Shopify store I can't see how this is good for Amazon.

Or at least require a deposit for sellers of a non-insignificant amount, a hold on new seller payouts for up to 30-60 days and per-seller stickers on intake inventory so sellers of counterfeits can be rooted out better.

Also, allow product manufacturers who sell directly, to block other sellers on the platform for their products and handle reports for alike-named and-or brand confusing products.

Amazon does very little to actually do anything meaningful to limit counterfeit products.

Screw the deposit. Amazon itself should be liable if they don’t track who actually sold the merchandise.

Amazon does track the original supplier.

From their seller help pages:

> Note: Amazon ensures that the initial source of the commingled units can be traced throughout the fulfilment process.

> Important: Amazon ensures that the exact same units from two sellers, participating in the commingling programme, are always physically segregated. This means that Amazon storage logic does not allow same ASINs of different sellers to be stored in the same bin in our warehouse if they are commingled.

In other words, Amazon ensures that commingled items are never physically commingled.

For a public source, see e.g. Amazon comment in this article: https://ftalphaville.ft.com/2019/04/03/1554287401000/Amazon-... (outline link: https://outline.com/4R7fp6)

> The system is purposefully designed so that similar products are not placed next to or near each other, and Amazon can also track the original seller of each unit.

The next sentence of your last paragraph says:

> Sellers are able to choose whether to share identical inventory or not.

That seems to indicate physical commingling. IIRC, avoiding commingling has an additional cost to the seller.

As far as I understand it, that just means that sellers have the option to opt in/out of the commingling program (Settings => Fulfillment by Amazon => FBA Product Barcode Preference).

Yes, there is a cost for the seller if opting out - they need to apply their own barcodes to the products in that case.

> Also, allow product manufacturers who sell directly, to block other sellers on the platform for their products and handle reports for alike-named and-or brand confusing products.

They do have a program for this, I believe: https://brandservices.amazon.com/

FWIW, they’ve started a program to apply serial numbers to individual units. It takes time to shift large platforms like this.

The doctrine of first sale means you can't keep people from reselling your branded products and if you don't offer your products on Amazon at this point others will offer fakes and with Amazons cooperation acquire your customers while offering them cheaper competitors products.

Its a lovely situation to say the least. All strategies are sub optimal. Logically we need a law forcing them to divulge who your actual product is coming from on the page before you buy effectively ending comingling.

The issue isn't reselling branded products.

The issue is selling fake products as a branded products. Amazon makes this easy to do by commingling inventory and not matching/tracking sellers to inventory items.

This fact by itself would probably make Amazon liable for product liability claims in any court in the US, it's traditional CDA liability sheild notwithstanding.

EDIT: Products liability law is complicated, but generally even if Amazon wouldn't be treated as a seller, they could still be held liable for their negligence in providing the wrong/defective item out of their (commingled) inventory. Amazon doesn't match sellers to inventory items so they have literally no way to defend themselves from such a suit especially if the seller can show that they provide products straight from the manufacturer but Amazon commingled with other sellers' inventory. (I'm aware of several such suits that were almost immediately settled by Amazon with NDAs attached.)

> Amazon makes this easy to do by commingling inventory and not matching/tracking sellers to inventory items.

That is not correct. Amazon's seller help pages and Amazon spokesperson comment on e.g. this FT Alphaville article https://outline.com/4R7fp6 say that Amazon tracks the original supplier:

> The system is purposefully designed so that similar products are not placed next to or near each other, and Amazon can also track the original seller of each unit.

I.e. commingling only means that any sellers' inventory can be used for fulfillment, not that the inventory is physically commingled.

I think thats pedantic. If I can't demand the seller I want, from my point of view it is commingled.

Sure, I completely agree. That's why it's called commingling.

Amazon "says" they can track the original supplier.

In practice, they clearly don't. I've had a client that was the only manufacturer of a product receive fake versions of their own product that was part of Amazon's commingled inventory. This happened last year.

Also, unless Amazon removes tags prior to delivery, there is no mechanism on many items that would allow them to track goods short of maintaining physical separation, which it is abundantly clear that they do not.

If this physical separation exists, it is useful only to Amazon if buyers can still be fulfilled by any of the sellers.

When evidence builds for fake product, Amazon can halt use of a particular seller's inventory...but prior to that you might get a fake, regardless of the seller's reputation.

The doctrine of first sale means people can re-sell your products.

It does not mean you have a right to do so on Amazon.

Or more to the point, you cannot claim they are being sold directly from the manufacturer.

Sure, but even if you're openly a reseller, Amazon doesn't have to let you on their platform.

They could say "we'll only let Apple sell Apple products here".

I think it would be challenging to keep track of who the original trademark owner is for every single item and creating a system for them to prove it. There are hundreds of thousands of businesses with thousands of products. And sometimes companies re-brand their products, or buy other companies, etc, etc. Or sometimes the original vendor doesn't ship in a particular country, its always through a distributor, etc, etc.

It's not clear that you can limit a buyer's ability to resell it on any market without a contract with the buyer that may or may not be legal or enforcable based on jurisdiction. It also doesn't seem likely that people willing to defraud people with any agreement.

> It's not clear that you can limit a buyer's ability to resell it on any market

Depends on who the "you" is here.

Nike can't forbid me from reselling shoes. Nike can ask Amazon to willingly forbid me from doing so on their platform, and Amazon can agree.

I slightly disagree. The item was sold by Proctor and Gamble. They got the money I paid, and I got a product back. Proctor and Gamble happened to use a third party for fulfillment and as a marketplace for handling the sale, and they are to blame for choosing a fulfillment company which may occasionally send me fake products that Proctor and Gamble didn't make.

We should fault the sellers for using Amazon in the first place.

That is bizarre dream logic. Amazon is the one commingling inventory. P&G are sending legitimate product.

I would never purchase anything from amazon other than books, personally. Too much of a chance you’re going to get counterfeits or faulty merchandise.

You're not wrong, but why does the seller get a pass? If I get a catalog in the mail labeled "Bob's Swimsuits for Portly Gentlemen," and I call the 800 number and order one, and instead I get an angry bobcat, my beef is with the folks at Bob's Swimsuits.

The fault may be with the company Bob hired to manufacture swimsuits, or maybe the shipping company for confusing boxes, or maybe Bob's catalog contractor got some model numbers switched around, but I'm just the customer. None of that stuff is visible to me, and I have no control over it. If the catalog company or the fulfillment company or the manufacturer part of the pipeline is known to occasionally produce bobcats, it's Bob's job to fix it.

Yes, this is Amazon's fuckup, but it's not the customer's job to conduct the postmortem. The customer has the privilege of blaming the entity they do business with.

I stopped buying books from amazon after getting few "new" books visibly used. Scribbled notes or giant greasy hand mark etc. If I need to drop off book for return anyway then I can make as well trip to normal bookstore (learned about very nice local one).

If Amazon instead sends a counterfeit product from someone other than P&G when I buy a product that is advertised as sold by P&G, the should be fraud, if it isn't already.

They need to show you who you're buying from if they aren't going to accept liability for selling it.

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