eBay listings for banned chemicals shielded by Section 230, judge rules

eBay’s attempt to defend against that claim by narrowly arguing that the TSCA should only be applied to the literal first seller to introduce a product to market not only failed, Merchant said, but also threatened to “undermine the TSCA’s regulatory scope” as a law designed to protect the public from any introduction of harmful substances.

However, none of that matters, eBay argued, because Section 230 bars that claim, too. Merchant agreed that without “allegations… eBay fails to remove third-party listings (conduct that is plainly immune under Section 230),” and the government’s complaint “would not state a claim.”

eBay vows to help prevent toxic sales

Perhaps the government had hoped that eBay might settle the lawsuit, as the company did last February in a DOJ case over the sales of pill presses. Similar to the DOJ’s bid to hold eBay liable for enabling product sales causing environmental harms, the DOJ had accused eBay of selling pill presses tied to fentanyl drug rings amid an opioid epidemic killing 100,000 people annually at its peak. Both suits were designed to stop eBay from distributing products causing harms, but only one succeeded.

In the pill press case, eBay did not invoke the Section 230 shield. Instead, eBay admitted no wrongdoing while agreeing to “pay $59 million” and voluntarily removing products targeted by the DOJ. In a statement, eBay said this was “in the best interest of the company and its shareholders as it avoids the costs, uncertainty, and distraction associated with protracted litigation.”

eBay did not appear concerned that the environmental lawsuit might have similarly long legs in court. An eBay spokesperson told Ars that the company appreciated the court’s “thoughtful review,” which “found that the government’s lawsuit should not be permitted to move forward.”

“Maintaining a safe and trusted marketplace for our global community of sellers and buyers is a fundamental principle of our business at eBay,” eBay’s spokesperson said. “As we have throughout our history, eBay will continue to invest significant resources to support its well-recognized and proactive efforts to help prevent prohibited items from being listed on our marketplace.”

Because Merchant granted eBay’s motion to dismiss the DOJ’s lawsuit over alleged environmental harms with prejudice, the DOJ will not have a chance to re-file the case in the same court but could possibly appeal to a higher court.

The DOJ declined Ars’ request for comment.