EPA and DOJ Claim eBay Unlawfully Sold Pesticides, Banned Chemical Products, and Devices That Defeat Pollution Controls on Motor Vehicles

The U.S. Environmental Protection Agency (EPA) announced on September 27, 2023, that the U.S. Department of Justice (DOJ), on behalf of EPA, filed a complaint against eBay Inc. (eBay) “for unlawfully selling, offering for sale, causing the sale of, and distributing hundreds of thousands of products” in violation of the Clean Air Act (CAA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Toxic Substances Control Act (TSCA). According to EPA, the complaint seeks a ruling that eBay’s business practices as an e-commerce retailer violated the CAA, FIFRA, and TSCA and injunctive relief to enjoin eBay from further violations of these laws, as well as civil penalties for violations of the CAA.

EPA states that the CAA prohibits selling, offering for sale, or causing the sale or offer of aftermarket parts that defeat motor vehicle emission controls, commonly known as aftermarket defeat devices. According to EPA, the complaint alleges that eBay sold, offered for sale, or caused the sale of more than 343,000 such parts. EPA notes that aftermarket defeat devices “can cause motor vehicles to emit hundreds to thousands of times more pollution than a motor vehicle with properly functioning emission controls,” including nitrogen oxides, carbon monoxide, non-methane hydrocarbons, and particulate matter, and impede efforts by EPA, states, Tribes, and local agencies to plan for and attain air quality standards.

EPA notes that FIFRA prohibits the unlawful distribution or sale of unregistered, misbranded, and restricted use pesticides, and authorizes EPA to issue Stop Sale, Use, or Removal Orders to anyone with ownership, custody, or control of such pesticides being unlawfully sold or distributed. EPA states that the complaint also alleges that eBay “has unlawfully distributed or sold at least 23,000 such products, and that some of those sales were in direct violation of a stop sale order issued to eBay in 2020 and amended in 2021.” According to EPA, examples of these pesticides include a high toxicity insecticide banned in the United States, restricted use pesticides that only certified applicators may apply, and products fraudulently claiming to protect users against SARS-CoV-2.

As reported in our March 20, 2019, memorandum, TSCA’s Methylene Chloride Rule prohibits retailers from distributing in commerce products containing methylene chloride for paint and coating removal to prevent unreasonable risks, including death, presented by these types of products. According to EPA, the complaint “alleges that eBay has distributed over 5,600 items in violation of TSCA’s Methylene Chloride Rule, including illicit paint and coating removal products.”

Commentary

The enforcement action reflects EPA’s continuing efforts to ensure e-commerce marketplaces are compliant with environmental laws and implementing regulations. EPA has been vigilant over the years in monitoring sales practices, and this enforcement action indicates there is no end in sight. The take home massage is that e-commerce participants — both marketers and platform owners like eBay, Amazon, and others — continue to be in EPA’s crosshairs. This makes it all the more important that marketers be fully prepared to respond to inquiries from platform managers about the compliance status of their products. This is especially true regarding FIFRA-regulated products as, in our experience, confusion abounds on the part of platform managers as to what is and is not FIFRA compliant.