NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 20 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PLANET GREEN CARTRIDGES, INC., a No. 23-4434 California corporation, D.C. No. 2:23-cv-06647-JFW-KS Plaintiff - Appellant,

v. MEMORANDUM*

AMAZON.COM, INC., a Delaware corporation; AMAZON.COM SERVICES, LLC, a Delaware limited liability company; AMAZON ADVERTISING LLC, a Delaware limited liability company,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted November 20, 2024 Pasadena, California

Before: RAWLINSON, CHRISTEN, and JOHNSTONE, Circuit Judges.

Planet Green Cartridges, Inc. (Planet Green) appeals the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. order granting Defendants’ (collectively, Amazon) motion to dismiss Planet

Green’s complaint. Because the parties are familiar with the facts, we do not

recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

review de novo the district court’s order dismissing the complaint. Dyroff v.

Ultimate Software Grp., Inc., 934 F.3d 1093, 1096 (9th Cir. 2019). We affirm.

1. We begin with the application of 47 U.S.C. § 230(c)(1), pursuant to

which immunity extends to “(1) a provider or user of an interactive computer

service (2) whom a plaintiff seeks to treat . . . as a publisher or speaker (3) of

information provided by another information content provider.” Barnes v. Yahoo!,

Inc., 570 F.3d 1096, 1100–01 (9th Cir. 2009) (citing 47 U.S.C. § 230(c)(1)). We

easily conclude that Amazon is an “interactive computer service” provider, a term

that we interpret “expansively,” Dyroff, 934 F.3d at 1097 (citing Kimzey v. Yelp!

Inc., 836 F.3d 1263, 1268 (9th Cir. 2016)), because Planet Green alleges that

Amazon operates websites, including Amazon.com, and much of its complaint

focuses on product listings on Amazon.com, see id.

We also conclude that Planet Green’s “theory of liability would treat

[Amazon] as a publisher or speaker . . . .” Barnes, 570 F.3d at 1101. Each of

Planet Green’s claims rests on the same theory of liability, which is that Amazon

made, or failed to prevent others from making, false or misleading statements

about “clone ink cartridges” sold on Amazon.com. This theory imposes a duty on

2 23-4434 Amazon to refrain from publishing such statements.

The third element of section 230 immunity is satisfied with respect to most,

but not all, of Planet Green’s claims. To satisfy this element, a defendant must not

create or develop the relevant “information provided through the Internet” and

thereby act as an “information content provider.” See 47 U.S.C. § 230(f)(3); Fair

Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157,

1162–63 (9th Cir. 2008) (en banc). One “develop[s]” content in the relevant sense

by “materially contributing to its alleged unlawfulness.” Roommates, 521 F.3d at

1167–68.

To the extent Planet Green’s claims are directed to statements published by

third parties on Amazon.com product listings, this element is satisfied because

Amazon merely publishes the third-party content at issue. See Calise v. Meta

Platforms, Inc., 103 F.4th 732, 744–46 (9th Cir. 2024). Although Planet Green

insists that Amazon’s extensive control over sellers and listings on Amazon.com

transforms Amazon into an information content provider, enabling or enhancing

the distribution of unlawful content through “neutral tools” is distinct from

“materially contributing to [the content’s] alleged unlawfulness.” Roommates, 521

F.3d at 1168–69.

Similarly, with respect to Planet Green’s allegations that Amazon collects

and analyzes customer data to create promotional emails and search-engine

3 23-4434 optimizations, enhancing access to actionable content—without more— does not

constitute creation or development of that content. See id. at 1171–72. Tools that

recommend or suggest third-party content “are tools meant to facilitate the

communication and content of others,” and “are not content in and of themselves.”

Dyroff, 934 F.3d at 1098; see Calise, 103 F.4th 745–46.

However, Planet Green also alleges that Amazon directly imports and

distributes clone ink cartridges through the Amazon Warehouse and the Fulfilled

by Amazon program, and that the packaging and labels on these clone ink

cartridges include false or misleading statements. These third-party statements are

not provided by “another information content provider,” 47 U.S.C. § 230(c)(1),

because they are not “information provided through the Internet,” id. § 230(f)(3).

Indeed, Planet Green’s allegations would not materially differ if Amazon

conducted its transactions at a brick-and-mortar retail store. Thus, extending

immunity to this circumstance would “exceed the scope of the immunity provided

by Congress and . . . give online businesses an unfair advantage over their real-

world counterparts.” Roommates, 521 F.3d at 1164 n.15. Accordingly, Planet

Green’s allegations concerning Amazon’s importation and distribution of ink

cartridges are not foreclosed by section 230.

2. We next conclude that, to the extent claims 1 through 5 of Planet Green’s

complaint (i.e., all claims other than its negligence claim) survive section 230,

4 23-4434 Planet Green has failed to allege an actionable false statement by Amazon.1 Planet

Green does not allege that Amazon itself made any of the false statements on the

packaging and labeling for clone ink cartridges; rather, the statements at issue were

all made by third parties. Amazon’s sale of a product, without more, does not

warrant treating Amazon as the maker of the statements contained within that

product’s commercial advertising.

3. As for Planet Green’s negligence claim (claim 6), Planet Green failed to

allege a legal duty owed by Amazon. Under California law, one “who has not

created a peril is not liable in tort merely for failure to take affirmative action to

assist or protect another” from the acts of a third party, absent a special

relationship. Williams v. State, 664 P.2d 137, 139 (Cal. 1983). Here, Amazon did

not create the risk that third-party ink cartridge manufacturers would make false or

misleading claims on their products’ packaging and labels. Moreover, we have

recognized that no duty is created “when a website facilitates communication, in a

content-neutral fashion, of its users’ content.” Dyroff, 934 F.3d at 1101 (citing

Klayman v. Zuckerberg, 753 F.3d 1354, 1359–60 (D.C. Cir. 2014)).

1 Each of Planet Green’s first five claims requires a false statement by Amazon. See 15 U.S.C. § 1125(a)(1) (Lanham Act false advertising and false designation); Cleary v. News Corp., 30 F.3d 1255, 1262–63 (9th Cir. 1994) (California Unfair Competition Law (UCL), Cal. Bus. & Prof. Code § 17200; and common-law unfair competition); Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 808–09 (9th Cir. 2007) (California UCL and false advertising, Cal. Bus. & Prof. Code § 17500).

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AFFIRMED.

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