Every Vape You Take: Litigation Is Now as Prevalent as Electronic Cigarettes

Photo Credit: https://www.montgomeryadvertiser.com/story/news/2019/08/07/alabama-woman-sues-e-cigarette-company-juul-over-teen-vaping-targeting/1943606001/

By: Sara Rogan
Research and Writing Editor, American Journal of Trial Advocacy

In 2015, smokers exhaled a sigh of relief with the introduction of the JUUL Labs electronic cigarette, also regarded as “an alternative smoking product.”[1] JUUL Labs, created by graduate students from Stanford University,[2] boasted that their electronic cigarette was unique, ground-breaking, and “[u]nrivaled.”[3] JUUL Labs even went so far as to state that this type of cigarette “can have a positive impact when used by adult smokers.”[4] In 2017, the company enjoyed great success as they produced well over $200 million in sales and confidently seized 32% of the market share.[5] Needless to say, electronic cigarettes were booming.

JUUL experienced enormous success and even struggled to keep up with the extreme demand for the product.[6] Over 3 million students, in both middle school and high school, were estimated to participate in vaping, a number that got drastically larger in just one year from 2017 to 2018.[7] Additionally, while other companies participate in selling electronic cigarettes, the majority are sold by JUUL Labs.[8] What seems to be a recent trend actually got its initial start in 2003 when the first patent was filed for the product.[9] Over a decade later, the JUUL appeared to be the answer to cigarettes, the solution to carcinogens, and the next big trend for a variety of age groups.

Now, in 2019, electronic cigarettes have claimed the lives of at least six individuals so far.[10] The number of hospitalizations due to electronic cigarette usage is far greater.[11] Additionally, in August of 2019, the FDA began investigating a potential connection between electronic cigarettes and seizures.[12] As a part of the investigation, the FDA is looking into well over 100 seizures that occurred over a span of 10 years and are believed to be connected to electronic cigarette usage.[13] These seizures are thought to be linked to electronic cigarettes as they “contain a high percentage of nicotine” that can lead to seizures in a big enough dose.[14]

While cigarettes are thought to be an issue of older generations, a 2018 study demonstrated that teenagers are 16 times more likely to use JUUL products than adults.[15] Campaigns were launched as organizations fervently tried to combat this epidemic; slogans such as “safer is not safe” surfaced, pointing out that lots of things (alcohol, car accidents, murders, etc.) are safer than smoking in terms of the number of deaths caused.[16]

Amid all this panic, legislatures started to act. In early September of this year, Michigan pioneered the way in banning “vaping products.”[17] The Governor continued by imposing limits on marketing in an attempt to target those ads that promote vaping as an innocuous option.[18] At that point in time, it was estimated that about half of all 50 states had residents who were experiencing cases of lung complications as a result of vaping.[19] However, it is noteworthy that the cases were mostly linked to individuals vaping with ingredients like THC or CBD as opposed to regular nicotine.[20] New York was close behind Michigan in enacting their own ban on vaping products in mid-September.[21] At this point in time, the number of states affected by the epidemic was closer to 40.[22]

So, what does all of this mean for the legal world? Two words: class action. The predominant focus among these class actions is on marketing schemes. Specifically, the FDA has taken note of the threat posed by e-cigarette advertising:

We will continue to scrutinize tobacco product marketing and take action as appropriate to ensure that the public is not misled into believing a certain product has been proven less risky or less harmful. We remain committed to using all available tools to ensure that e-cigarettes and other tobacco products aren’t being marketed or sold to kids. We’ve also put the industry on notice: If the disturbing rise in youth e-cigarette use continues, especially through the use of flavors that appeal to kids, we’ll take even more aggressive action.[23]

Plaintiffs are alleging that companies promulgating e-cigarettes abused “themes that resonate with teenagers.”[24] Essentially, the claims are attacking JUUL for preying upon youth by showing e-cigarettes to be enjoyable and merely flavorful exhalations. One such class action, being brought by nationwide firm Berger Montague on behalf of plaintiffs, is focusing their attack on JUUL’s marketing.[25] Specifically, plaintiffs are claiming that JUUL’s promotion of its products was “false and deceptive” and “specifically targeted young people.”[26] The complaint states that JUUL successfully reached a younger generation by creating a product that was “easily charged on a laptop, ha[s] colorful decal covers and designs, and come[s] in different flavors such as mango and fruit medley.”[27]

In addition to advertisement issues, the claims attack the science of the products. Plaintiffs claim that JUUL was aware that their e-cigarettes provide a greater amount of nicotine at a faster rate than a normal cigarette.[28] The class action emphasizes that JUUL was fully aware of these risk factors but continued to advertise in a way to minimize or altogether hide these risks.[29] Berger and Montague asserts that JUUL had knowledge that its products were dangerous without exception for those individuals who were not already smokers; further, they assert that not only is this product unequivocally bad for non-smokers, it was not the relief that smokers were seeking as vaping can “aggravate[e] nicotine addiction” for current smokers.[30]

While these cases are building, it is still very early in the litigation process. A quick Westlaw search indicates that there are only 28 cases that contain the phrase “Juul Labs.” There were only a few more trial court documents, indicating that these cases are still brewing, and firms are still recruiting plaintiffs. One complaint filed in California in May of 2018 thoroughly outlines and summarizes what appear to be the widely-shared grievances against JUUL Labs. The complaint addresses the following issues: “false and deceptive advertising”; advertisements aimed at “children and young adults”; notions that e-cigarettes are a better option to regular cigarettes; suppression of facts regarding risks; and the “Autoship” service that makes purchasing JUULs even easier.[31] Plaintiffs in the aforementioned complaint are also demanding a jury trial.[32] For the five causes of action Plaintiffs are alleging, they are demanding compensatory damages, restitution, injunctive relief, punitive damages, attorneys fees, costs of litigation, and any other relief that is deemed appropriate by the court.[33] Another complaint takes the allegations a step further and frames the issue in terms of a violation of Section 11 of the Securities Act, stating that there were problematic statements in the company’s registration.[34]

While litigation has not granted answers yet, public opinion more than likely has made their determination, as more individuals are sharing personal testimonials on social media. As individuals continue to incur injury and as cases develop, there will undoubtedly be even more to discuss. At this point in time, while the injuries and consequences are fairly well-established, the class actions are still in very early stages.

[1] Alyssa Stahr, New Product: PAX LABS Introduces E-CIGARETTE JUUL, Vape News (June 1, 2015), https://vapenews.com/vape-news/new-product-pax-labs-introduces-e-cigarette-juul/.

[2] Melia Robinson, How a Startup Behind the ‘iPhone of Vaporizers’ Reinvented the E-Cigarette and Generated $224 Million in Sales in a Year, Bus. Insider (Nov. 21, 2017, 12:48 PM),https://www.businessinsider.com/juul-e-cigarette-one-million-units-sold-2017-11.

[3] Stahr, supra note 1.

[4] Our Mission, Juul, https://www.juul.com/mission-values (last visited Sept. 29, 2019).

[5] Robinson, supra note 2.

[6] Id.

[7] Melissa Brown, Elmore County Woman Sues E-Cigarette Company Over Teen Targeting, Montgomery Advertiser (Aug. 7, 2019, 2:45 PM), https://www.montgomeryadvertiser.com/story/news/2019/08/07/alabama-woman-sues-e-cigarette-company-juul-over-teen-vaping-targeting/1943606001/.

[8] Ivan Couronne, JUUL: E-Cigarette Dominates the Market – and Fears of Parents, Med. Xpress (Oct. 3, 2018),https://medicalxpress.com/news/2018-10-juul-e-cigarette-dominates-marketand-parents.html.

[9] Lisette Voytko FDA Investigates 127 Seizure Reports Potentially Linked to Vaping, Forbes (Aug. 8, 2019, 8:59 AM), https://www.forbes.com/sites/lisettevoytko/2019/08/08/fda-investigates-127-seizure-reports-potentially-linked-to-vaping/#60c70216454b.

[10] Doug Stanglin, A 6th Person Has Died from a Vaping-Related Lung Illness, This Time in Kansas, USA Today (Sept. 11, 2019, 8:25 AM), https://www.usatoday.com/story/news/nation/2019/09/11/kansas-reports-6th-death-related-vaping-lung-illness/2283959001/.

[11] Sheila Kaplan, Dozens of Young People Hospitalized for Breathing and Lung Problems After Vaping, N.Y. Times (Aug. 14, 2019), https://www.nytimes.com/2019/08/14/health/vaping-marijuana-e-cigarettes.html.

[12] Michael Felberbaum, FDA In Brief: FDA Encourages Continued Submission of Reports Related to Seizures Following E-Cigarette Use as Part of Agency’s Ongoing Scientific Investigation of Potential Safety Issue, FDA (Aug. 7, 2019), https://www.fda.gov/news-events/fda-brief/fda-brief-fda-encourages-continued-submission-reports-related-seizures-following-e-cigarette-use.

[13] Voytko, supra note 9.

[14] Id.

[15] Press Release, Truth Initiative, New Study Reveals Teens 16 Times More Likely to Use JUUL Than Older Age Groups (Oct. 30, 2018), https://truthinitiative.org/press/press-release/new-study-reveals-teens-16-times-more-likely-use-juul-older-age-groups.

[16] Vaping Might Be Safer Than Smoking, but That Doesn’t Make It Safe, Truth, https://www.thetruth.com/articles/hot-topic/safer-safe (last visited Sept. 17, 2019).

[17] Angelica LaVito, Michigan Becomes First State to Ban Sales of Flavored E-Cigarettes, CNBC, https://www.cnbc.com/2019/09/04/michigan-bans-sales-of-flavored-e-cigarettes-restricts-vaping-marketing.html (last updated Sept. 46, 2019, 10:17 AM).

[18] Id.

[19] Id.

[20] Id.

[21] Scott Neuman, New York Set to Join Michigan in Banning Some Electronic Cigarettes, NPR (Sept. 16, 2019, 1:23 AM), https://www.npr.org/2019/09/16/761098173/new-york-set-to-join-michigan-in-banning-e-cigarettes.

[22] Id.

[23] Press Release, FDA, FDA Warns JUUL Labs for Marketing Unauthorized Modified Risk Tobacco Products, Including in Outreach to Youth (Sept. 9, 2019), https://www.fda.gov/news-events/press-announcements/fda-warns-juul-labs-marketing-unauthorized-modified-risk-tobacco-products-including-outreach-youth.

[24] Brown, supra note 7.

[25] JUUL Class Action Lawsuit, Berger Montague,