negligence claim v Amazon survives when 230 bars false advertising claim

Brodie v. Green Spot Foods, LLC, 2020 WL 7027594, No. 20 Civ. 1178 (ER) (S.D.N.Y. Nov. 30, 2020)

Brodie sued Green Spot and Amazon for “injuries she sustained after consuming a product known as Better than Pasta, which she purchased on Amazon’s website.” Better than Pasta products are pasta substitutes whose primary ingredient is a root plant called konjac. “When consumed, konjac swells from its original size in the human digestive tract and may become indigestible. It may also cause choking and stomach or intestinal blockage.” Brodie pled that these dangers are “generally well-known” and have led the FDA and similar regulatory bodies to ban certain foods containing konjac or issue warnings about its risks. The packaging states that the food is “made from organic Konnyaku flour, from the root of an ancient Japanese organic plant called Konjac,” but doesn’t provide warnings about konjac’s alleged risks.

Green Spot allegedly initially created all advertising for the product, but Amazon also marketed and advertised the product on Amazon.com. Green Spot participates in Fulfillment by Amazon, meaning that Amazon ships the product to customers directly from its warehouses. Amazon designated Better than Pasta as an “Amazon’s Choice” product on the website.

Green Spot and Amazon were allegedly made aware of the dangers of Better than Pasta because they received numerous customer complaints about the health issues caused by consuming the product. E.g., “I tried this pasta for the first time last night, and today I’m having SEVERE intestinal cramps. Buyer beware! I did a web search and discovered some Konjac root products have been banned because they can actually cause an intestinal blockage.” Brodie alleged that Green Spot “may have directed Amazon to remove other negative complaints about the product,” and that it pays or incentivizes individuals to leave “false positive reviews” with Amazon’s knowledge, which Amazon allowed.

Negligence/breach of implied warranty by Amazon was sufficiently alleged because the ingredient was listed and Brodie sufficiently alleged that the ingredient’s dangers were generally known, and that the negative reviews posted on the website made Amazon aware of konjac’s potential to cause digestion issues and other injuries, and retailers have a duty to know that which can be known by ordinary inspection.

“Amazon’s Choice,” however, wasn’t an express warranty because it didn’t make a specific factual representation.

NY GBL §§349 & 350: The CDA protected Amazon from liability for republishing content created by Green Spot. “There is insufficient factual pleading supporting the plausible inference that Amazon itself created or edited any of the Better than Pasta advertising content.” As for the consumer review-based allegations, they were insufficient. “Although Brodie alleges that it is common for third-party sellers to pay for false positive reviews, this fact does not lead to a plausible inference that Amazon itself knows about this practice or permits false reviews to be posted.”