Section 230 Protects Amazon from Manufacturer’s Ad Copy–Brodie v. Amazon

This case involves a product called “Better Than Pasta,” which contains konjac as an ingredient. Konjac can swell as it moves through the intestines, causing potentially serious injuries. As a result, some countries ban konjac products or require warning labels. The plaintiff in this case bought Better Than Pasta on Amazon, consumed it, and suffered personal injuries. She sued the manufacturer (Green Spot), Amazon, and others. Amazon filed a motion to dismiss. The court says “For purposes of this motion, both parties agree that Amazon is a retailer.” Thus, this ruling isn’t addressing Amazon’s marketplace function.

Negligence and Breach of Implied Warranty. The product packaging listed konjac flour as an ingredient and consumer reviews indicated that people were having problems with the product, so Amazon had notice of the product’s potential danger.

Breach of Express Warranty. Amazon designated the product as an “Amazon’s Choice,” but that designation didn’t convey any further information about the product. Amazon did provide a product guarantee with a refund, but the plaintiff didn’t allege that Amazon breached the guarantee.

False Advertising. Section 230 protects Amazon from liability for the manufacturer’s advertising. The court says other courts have “barred claims against Amazon for permitting injurious or prohibited products on its platform without adding warnings.” The court cites to McMillan v Amazon and the withdrawn 3d Cir. opinion in Oberdorf–both of which were marketplace cases, not retailer cases. The court explains:

the question is whether Amazon can be considered an information content provider with respect to Better than Pasta’s advertising, and the Court finds that it is not. There is insufficient factual pleading supporting the plausible inference that Amazon itself created or edited any of the Better than Pasta advertising content.

I’m struggling to understand this part of the ruling. Normally a retailer is liable for its own false advertising, even when it relays false copy from manufacturers verbatim. Here, the court seems to be saying that an online retailer can invoke Section 230 against manufacturers’ ad copy, even if the retailer displayed that ad copy as part of its product sales. This reminded me of the uncited Corker v. Costco case, which seemed similarly garbled on this point. Pursuant to the uncited HomeAway case, marketplaces can invoke 230 for merchant listings up until the point where the transaction consummates, in which case all bets are off. Here, the court seems to go further–the court seems to be saying that retailers (not just marketplaces) get protection for the third-party ad copy even if they close the deal….? It would have helped if the court had laid out more of its thinking here.

The plaintiff claimed that Amazon had deleted negative reviews at the manufacturer’s request. The court says these were inadequately pled.

Amazon’s news on the false advertising claim is good, but the lawsuit’s real payload is the negligence claim, which the court will let proceed.

Case citation: Brodie v. Green Spot Foods LLC, 2020 WL 7027594 (S.D.N.Y. Nov. 30, 2020)