President Donald Trump's March 13 executive order to combat fraudulent "Made in America" claims in advertising takes aim at a familiar enforcement problem in a new venue: online marketplaces.
It directs the Federal Trade Commission to consider issuing proposed regulations that would treat "the failure of an online marketplace to establish procedures for verifying country-of-origin claims" as a potentially unfair or deceptive act or practice under the FTC Act. The directive tees up a collision with Section 230 of the Communications Decency Act, which bars treating internet services as the publisher or speaker of third-party content.
For large platforms that host third-party sellers, the stakes are practical and immediate: The executive order signals a push to shift part of the compliance burden for "Made in America" claims from sellers to marketplaces themselves.
But Section 230 makes it difficult to impose liability for failing to vet or verify third-party representations. Below, we place the executive order in the FTC's existing "Made in America" framework, summarize the relevant Section 230 doctrine, and identify how the FTC could try to navigate that doctrine and where those theories are likely to break down.
What the Executive Order Asks the FTC To Do
The executive order declares it U.S. policy that "Americans have a right to clear, accurate, substantiated, and accessible information regarding whether products advertised as 'Made in America' are actually made in the United States."
The executive order identifies what it sees as a digital marketplace problem — foreign sellers exploiting platform scale and consumer patriotism to circulate false U.S.-origin claims, injuring consumers and domestic manufacturers.
Section 2(b) directs the FTC to "consider issuing proposed regulations providing that the failure of an online marketplace to establish procedures for verifying country-of-origin claims may constitute an unfair or deceptive act or practice" under the FTC Act. Framed this way, the executive order contemplates liability for a marketplace omission — not adopting verification procedures — rather than the underlying misrepresentation.
Such an FTC rule would push platforms toward an affirmative vetting duty for third-party "Made in America" claims.
The executive order also calls for prioritizing enforcement against deceptive "Made in America" claims and for interagency consultation. Separately, it directs agencies involved in federal procurement to review American-origin claims for acquisition purposes, with potential procurement consequences and referrals for violators.
Where the FTC Already Stands on "Made in America" Claims
The FTC derives its authority to police "Made in America" claims from Section 5 of the FTC Act, which prohibits "unfair or deceptive acts or practices in or affecting commerce."
Under this authority, the FTC has long enforced a requirement that unqualified "Made in America" claims meet the "all or virtually all" standard — meaning that all significant parts, processing and labor that go into the product must be of U.S. origin, and the product must contain no, or only negligible, foreign content.
The FTC's current framework rests primarily on its 1997 enforcement policy statement on U.S. origin claims, which articulated the "all or virtually all" standard and guidance for qualified claims. The FTC also relies on the Made in USA Labeling Rule it finalized in 2021, which codified the standard for labels and authorized civil penalties for noncompliant labels.
The FTC has actively enforced these requirements, including through civil penalties under the Made in USA Labeling Rule. Until now, however, FTC has focused enforcement on entities making or substantiating the origin claims, not on the online platforms that display third-party listings.
The Section 230 Constraint
Section 230(c)(1) provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Courts have read this language broadly to immunize Internet platforms — including online marketplaces — from civil liability premised on third-party content.
An interactive computer service is defined broadly as any system or service that enables multiple users to access a server. Major marketplaces (e.g., Amazon, eBay, Walmart Marketplace) generally fit the definition. An information content provider is any person or entity responsible, in whole or in part, for creating or developing the information at issue. Sellers who draft product listings and make country-of-origin claims within them are information content providers as to those claims.
Section 230 does not apply where the platform itself is an information content provider, where it is "responsible, in whole or in part, for the creation or development" of the challenged content.
As the U.S. Court of Appeals for the Sixth Circuit explained in its 2014 decision in Jones v. Dirty World Entertainment Recordings LLC, "a website may be immune from liability for some of the third-party content it publishes but be subject to liability for the content that it is responsible for as a creator or developer." The line between hosting and materially contributing drives the analysis of the executive order's proposed marketplace obligations.
Why a Marketplace Verification Mandate Runs Into Section 230
The executive order's contemplated theory of liability is unusual: Regulations would deem a marketplace's "failure to establish procedures for verifying country-of-origin claims" an unfair or deceptive act or practice. The FTC would target the marketplace not for making a false "Made in America" claim, but for allowing a third party's claim to appear without first verifying it.
That failure-to-verify theory closely resembles the kind of publisher-based duty that Section 230(c)(1) was designed to foreclose. Courts routinely reject claims that impose a duty to monitor, screen or verify third-party content, even when plaintiffs recast the theory as negligent design or failure to remove harmful content.[13] For example, the U.S. Court of Appeals for the Second Circuit in the 2019 case Force v. Facebook Inc. treated algorithmic organization and distribution of third-party content as traditional publishing functions protected by Section 230.
The U.S. Court of Appeals for the Ninth Circuit's 2004 decision in Calise v. Meta Platforms Inc. illustrates the framing inquiry. Users alleged harms from fraudulent third-party ads on Meta's platform, and the court reiterated that Section 230 turns on whether the theory of liability treats the defendant as the publisher or speaker of third-party content. When the alleged duty derives from the defendant's status or conduct as a publisher, Section 230 bars the claim.
Applied here, regulations that require marketplaces to verify sellers' country-of-origin claims, and impose liability when they do not, would treat marketplaces as publishers of "information provided by another information content provider."
A seller's "Made in America" representation is third-party content; displaying it is a publishing function; and imposing a prepublication verification duty effectively makes the platform responsible for the claim's truth or falsity, conduct Section 230 typically immunizes.
How the FTC Might Try To Get Around Section 230
The FTC would likely argue that Section 230 should not foreclose enforcement if a marketplace meaningfully contributes to deceptive content or if liability is framed as the marketplace's own conduct. Those arguments have footholds in case law, but they are difficult to apply to a rule that would impose liability for not verifying third-party origin claims.
The Information Content Provider Exception
The FTC's best argument would be that some marketplaces could fall outside Section 230 where they materially contribute to the illegality of the content.
In the 2016 case FTC v. LeadClick Media LLC, the Second Circuit denied immunity where the defendant "participated in the development of the deceptive content" created by affiliates and exercised control over it.[16] The court found the defendant to be an information content provider because it materially contributed to the unlawful content.
Likewise, in 2009 in FTC v. Accusearch Inc., the U.S. Court of Appeals for the Tenth Circuit denied immunity where the operator commissioned and paid for unlawful acquisition of confidential information.
Those cases involved defendants that helped create, direct or procure the unlawful content. By contrast, a marketplace that merely hosts and displays a seller's listing containing a "Made in America" claim typically has not created or developed that claim. The FTC's own authorities recognize that Section 230 applies where the allegedly inaccurate information originates with third-party users rather than the platform itself.
The Own Conduct Theory
The FTC may contend that a verification rule would regulate the marketplace's own omission (i.e., not establishing procedures) rather than treating the marketplace as the publisher of a seller's claim. Some courts note that Section 230 does not apply where liability is premised on the defendant's own deceptive acts or practices.
But courts generally look past labels. Recasting a failure-to-monitor claim as an independent duty does not avoid Section 230 where the asserted duty is inseparable from publishing third-party content.
In 2019 in Herrick v. Grindr LLC, in the Second Circuit, for example, claims styled as negligence and design defects were barred because they ultimately sought to hold the platform responsible for third-party content. A verification mandate would likewise function as a prepublication screening duty; an editorial function protected by Section 230.
The Federal Enforcement Exception
The FTC might argue that Section 230 should not bar federal civil enforcement. But the text of Section 230(e)(1) preserves only federal criminal enforcement, and courts treat that limitation as meaningful.
Absent a congressional amendment creating a civil enforcement carveout — as Congress did for sex trafficking — the statute provides little support for exempting FTC civil actions from immunity.
What This Means for Marketplaces and Enforcement Strategy
Existing case law suggests that FTC enforcement against marketplaces premised on a failure to verify third-party "Made in America" claims would likely collide with Section 230.
The executive order's contemplated rule would impose liability for a marketplace's publication of unverified third-party origin claims, publisher liability in functional terms, rather than for the marketplace's own false statements.
The leading cases allowing liability despite Section 230 involve platforms that materially contributed to unlawful content — not platforms that merely hosted it. And Section 230's express carveouts do not cover FTC civil enforcement.
The FTC remains well-positioned to pursue the sellers and manufacturers that make the claims, but shifting the verification burden to marketplaces is likely to be challenged as inconsistent with Section 230.
What Marketplaces Can Do Now
Even if Section 230 ultimately limits the FTC's ability to impose verification obligations, the executive order signals heightened scrutiny of "Made in America" claims on major platforms. Marketplaces should prepare for rulemaking, investigative demands and test-case litigation.
Assess current policies and contracts.
Review onboarding, compliance and takedown workflows for country-of-origin claims. Confirm that seller terms include clear representations and warranties regarding origin claims and allocate responsibility to sellers for listing accuracy.
Evaluate voluntary verification carefully.
If a marketplace adds origin-verification features, it should do so with counsel to avoid creating arguments that the platform developed the claim or affirmatively vouched for it. Program design, marketing language and the degree of human review can all affect Section 230 risk.
Preserve Section 230 positioning.
Avoid statements that the platform guarantees, certifies or endorses sellers' "Made in America" claims. Content policies and customer-facing disclosures should consistently reflect that sellers are the information content providers.
Monitor and engage in rulemaking.
If the FTC issues a notice of proposed rulemaking, participate early and substantively; raise Section 230 issues, feasibility concerns and alternative approaches that target bad actors without imposing platformwide verification mandates.
Plan for early litigation posture.
If the FTC tests the executive order's theory through an enforcement action, marketplaces should be prepared to raise Section 230 at the earliest stage. The U.S. Courts of Appeals for the Fourth Circuit and Sixth Circuit have described Section 230 as "an immunity from suit rather than a mere defense to liability," which can be "effectively lost" if a case proceeds to trial.
Engage on legislation.
If policymakers pursue a Section 230 amendment to address origin-claim enforcement, marketplaces should advocate for narrow, workable language and clear safe harbors tied to reasonable compliance measures.
The Bottom Line
The executive order reflects a real enforcement concern: False "Made in America" claims can proliferate on digital marketplaces at scale.
But a rule that deems it deceptive for a marketplace to display third-party origin claims without first verifying them would likely run into Section 230's publisher immunity doctrine, absent a statutory amendment or a materially different enforcement theory.
In the meantime, marketplaces should expect increased scrutiny and position themselves now — contractually, operationally and in public-facing statements — to mitigate risk while preserving Section 230 defenses.
"'Made In America' EO May Not Survive Section 230," by Terry M. Henry and Samantha L. Follen, was published in Law360 on April 15, 2026. Reprinted with permission.