By: Mitchell Gomez, Executive Director
Recently, the news broke that Amazon has removed all testing kit vendors. To be blunt about the situation, it has always been a violation of Amazon’s terms of service to sell testing kits. Not only does their TOS explicitly ban “drug purity kits” (which, arguably, reagent kits are not), it also states that, “If you supply products for sale on Amazon, you must comply with all federal, state, and local laws and Amazon policies applicable to those products and product listings.” Because testing kits are considered paraphernalia under a very strict reading of many state drug laws, selling them has never been allowed on Amazon. While no one has ever been charged for just possessing a test kit, that doesn’t change Amazon’s correct legal reading of this situation and their own terms for sellers.
Their decision to enforce the existing policy regarding the selling of test kits was entirely expected, and perfectly rational from a “we don’t want to expose Amazon to liability” perspective. It also violates the terms of service of most other large e-commerce sites, and eventually, we fully expect them all to follow Amazon’s lead on this.
DanceSafe as an organization has been expecting a decision like this for many, many years, but that is only a small part of why we philosophically decided not to sell on Amazon.
As a harm reduction non-profit, DanceSafe takes data privacy very seriously. And selling via third-party sites simply doesn’t allow us to protect our patrons in a way that we are comfortable with. This is true regardless of the site used; from Amazon, to eBay, to any website built on an “off the shelf” e-commerce site builder.
Although in our opinion it is not particularly likely to happen, if one of these for-profit companies were served with a subpoena for a list of everyone who had ever purchased a test kit, it seems unbelievable that they would fight this in either a court of law, or the court of public opinion. Just search any of the big sites and “subpoena” to see how they have historically dealt with issues of data privacy, or read this story on the subject. It seems unlikely they would even tell anyone outside of their organization about such a subpoena. In fact, some sites like eBay offer a very handy “‘law enforcement portal” for LEO’s who want to request data about any transactions which took place on their site. Because we have full control of our own information, we are able to mitigate the risk of this data even existing, let alone falling into external parties’ hands.
Additionally, many of these sites mandate or encourage sellers to ship via USPS. Unfortunately, the US Postal Service and the Department of Homeland Security have ruled that reagent test kits can not be shipped via USPS in any quantity. You can read their letter to us here.
Although we hired a very reputable HAZMAT shipping consultant and consulted with multiple lawyers to help us fight this decision, ultimately this was what they ruled. Although some lower level postal employees have erroneously told kit sellers (including us, at one time) that shipping via USPS was okay, as long as the packages were properly labeled, eventually anyone shipping via USPS will receive a letter similar to this. Sadly, it is an undeniable fact that shipping via USPS in any quantity violates their regulations, and DanceSafe will not risk either our customers, or our organization, by shipping this way for an external sales site.
All of these facts, from data privacy to shipping issues, are well known to anyone who sells test kits. Which means that a person who decides to sell on these third-party sites has made the decision that maximizing market share, and their own personal profits, is more important than the safety and privacy of their customers. When a person ships kits via USPS, they are risking not just their company and their customers, but the ability of anyone to manufacture and sell kits. One of our largest concerns is a mislabeled kit shipped via USPS in violation of their regulations leaking and harming a federal employee, resulting in a national crackdown on kit manufacturing itself.
The real difference, of course, is that we aren’t a “test kit vendor” in any meaningful sense. DanceSafe does sell kits, but what we ARE is a 501(c)(3) public health non-profit, using test kits as one small part of our overall health education mission, and using test kit sales to fund free, on-site testing and education at hundreds of events per year. We aren’t an anonymous user-name on an e-commerce site, with an anonymous LLC and PO Box behind that. We manufacture our kits using a licensed manufacturer, to ensure compliance with the law and with best practices for the safety of our customers. We never ship in violation of USPS regulations, and take seriously our commitment to protecting our patrons, donors, and supporters’ data privacy. Our Board of Directors, staff, Advisory Council, and volunteers are all proud of the work they do for the harm reduction movement, and all of us are out in the field, working every day to end the harms of drug prohibition.
It is up to the consumer what behavior they want to support: people that protect consumers, the harm-reduction movement, and are helping to keep people in the music community healthy and alive, or sellers risking the safety and data of test kit buyers while seeking to enrich themselves personally.
Ultimately, it seems certain that every e-commerce site will ban the sale of test kits, since it already violates their terms of service and paraphernalia laws. The solution can’t be found by pushing one site or another to ignore their legal teams (believe me, they won’t). The only solution to this long term is to change state paraphernalia laws, which DanceSafe (in partnership with other drug policy organizations) is actively working on. The law in Maryland was successfully changed in 2018, and we are working on changing the law in Colorado now. This will be an exhaustive, multi-year fight to change these laws in every state, but it is one we are committed to in the long run.
So, how can you help?
If you’re a lawyer or policy activist, email our Deputy Director at email@example.com to see how you might be able to help with advocacy around changing state laws. If you’re interested in volunteering with us at events, you can get trained here. If you want to directly support our health education mission, tax-deductible donations can be made here. And if you’re looking for a test kit, you can always get one in person from one of our many chapters or get one from our website.
As always, thank you for your support.