In 2006, e-cigarettes were introduced to the U.S. market as an alternative to the traditional combustible cigarette. For the next 10 years, the vape industry faced virtually no product liability lawsuits, other than a number of cases involving exploding vape devices. Since 2018, however, litigation against vape product manufacturers and distributors has proliferated. Leading vape manufacturer, JUUL Labs, now faces hundreds of lawsuits, filed in both federal and state courts throughout the country. The federal actions are so numerous that they have been consolidated into a multi-district litigation in the U.S. District Court for the Northern District of California. Similarly, California has consolidated in Los Angeles County Superior Court the dozens of cases filed against JUUL in that state.

To date, most of these cases primarily make claims related to nicotine addiction, particularly among youth, alleging several bases of liability, including allegations that JUUL:

• Targeted youth with its marketing practices and use of flavorings
• Failed to warn of the use of nicotine salts, a form of nicotine alleged to be more addictive than the "freebase" form found in typical e-cigarettes
• Mislabeled the dosage of nicotine contained in its product
• Marketed its product as a safer alternative to smoking, without a basis for this claim
• Defectively designed its product by failing to limit the amount of nicotine delivered to the user resulting in a product that poses risks of abuse, addiction, and, in youth, long-term neurological damage

Many of these cases also contain claims seeking injunctive and equitable relief, alleging that JUUL has created a public nuisance and it should be required to bear the burden of the associated costs. Many plaintiffs have also separately demanded that JUUL fund ongoing medical monitoring for future injury. A further set of cases against JUUL concerns disease causation, including allegations that exposure to JUUL's product caused hemorrhagic stroke, seizures, and acute lung injury (resulting in both serious injury and death).

Taking a page from cigarette litigation, plaintiffs have also brought a putative class action lawsuit alleging that use of JUUL products exposed class members to second-hand "toxins" from e-cigarette vapor that may result in future injury. The complaint in this case contains no allegations of actual second-hand exposure, instead alleging that the class should be compensated for the possibility of this exposure. These plaintiffs also seek medical monitoring.

The popularity of e-cigarettes among young people has generated further headaches for the industry. In December 2018, the U.S. Surgeon General declared that e-cigarette use "has become an epidemic among our nation's young people." Surgeon General's Advisory on E-Cigarette Use Among Youth, at p. 2 (Dec. 18, 2018). Recently, 39 state attorneys general announced an investigation into marketing and sales practices engaged in by JUUL. This investigation follows lawsuits filed against JUUL by attorneys general in New York, California, North Carolina, and Illinois, alleging that JUUL engaged in deceptive marketing practices targeting youth, misled consumers about the nicotine content of its products, and misrepresented the overall safety of its products. Many local municipalities have also filed lawsuits against JUUL seeking to recover for the time, money and human resources that they claim they have had to employ to combat the nuisance purportedly created by JUUL's marketing practices.

A further issue facing the industry concerns the confusion around the outbreak of acute lung injury among certain vape users. Since March 2019, according to the Centers for Disease Control and Prevention (CDC), 2,807 people have been hospitalized for vape product use-associated lung injury (EVALI), with 68 confirmed deaths. These cases have been reported in all 50 states, the District of Columbia, and two U.S. territories (Puerto Rico and U.S. Virgin Islands). Substances other than nicotine can also be vaped. One such substance is THC, the psychoactive ingredient in cannabis. The CDC has identified vitamin E acetate, which is frequently used as an additive in black-market e-liquids containing THC, as the primary cause of EVALI. However, despite the fact that neither JUUL nor any other commercial e-cigarette manufacturer has had its products identified as a cause of EVALI, and the fact that many major commercial e-cigarette products (including JUUL) are constructed to discourage the use of any third-party vaping liquids, commercial e-cigarette manufacturers have been caught up in concerns about EVALI. This problem was exacerbated by the initial lack of distinction, by either the CDC or the media, between various commercial e-cigarettes and vitamin E-tainted black-market products. For instance, in August 2019, the New York Times reported: "doctors and hospitals nationwide report an increasing number of vaping-related respiratory illnesses this summer," "they have been stumped in recent weeks by the cause … other than vaping in general." Richtel & Kaplan, First Death in a Spate of Vaping Sicknesses Reported by Health Officials, New York Times (Aug. 24, 2019).

What We See Happening Next: More Lawsuits

Until recently, JUUL has been the primary target of private plaintiffs and government actions. However, other manufacturers and distributors of vape products have now been drawn into litigation. In December 2019, Whatcom County, Washington filed a lawsuit against several major players in the vape industry. Whatcom County v. JUUL Labs, et al., Case No. 19-cv-8191 (N.D. Ca. 2019). While Whatcom County filed a motion to voluntarily dismiss the action, the dismissal should not give the vape industry much comfort.

The industry should anticipate more lawsuits and investigations from attorneys general and local municipalities. Anti-vaping action is a rare bipartisan issue that provides the government the opportunity not only to target what it deems to be a public nuisance but to add to its coffers. The litigation and investigations into JUUL's marketing practices may also provide government officials with reason to delve into the marketing practices of other manufacturers.

Vape product manufacturers and distributors should also anticipate a wave of lawsuits from the plaintiff's bar asserting claims similar to those asserted against JUUL. Indeed, a Google search for "vaping lawsuit" generates multiple hits for attorney advertisements targeting potential plaintiffs interested in asserting claims.

Vaping litigation is heavily fact dependent. This may make it difficult for defendants to summarily dispose of lawsuits. Typical issues include plaintiff's use of the product, the defendant's marketing, advertising and warnings, and whether the condition at issue was caused by product use. In the JUUL MDL, JUUL has twice moved to dismiss the claims against it. While JUUL has been successful in limiting the scope of the claims, it has been unable to have them dismissed in their entirety. Among the remaining claims are manufacturing and design defect claims, as well as the claim that JUUL misrepresented the amount of nicotine contained in its product.

What Companies Can Do To Better Mitigate Litigation Exposure

This kind of complex litigation requires extensive preparation. There are several steps vape companies should take to gain a better understanding of their litigation exposure, including:

(1) Review of company records;

(2) Stay abreast of relevant scientific literature, and work with independent scientific and medical experts; and

(3) Keep up to speed on developments in the law.

Having a strong grasp of the company documents will assist a company in better understanding its exposure to claims that its products are defective and/or whether it used inappropriate marketing efforts. This document collection and review effort should, at a minimum, include a review of advertising/marketing materials, both internal and external, as well as records of company-conducted scientific research into its products, in addition to more general corporate documents such as memoranda and correspondence about its products.

Under product liability law, manufacturers are treated as experts in their products, and are charged with constructive knowledge of claims regarding the health effects of those products. Accordingly, manufacturers must be up-to-date on the scientific literature regarding their products. Further, companies should consult with independent scientific and medical experts, who can assist a company in understanding what if any medical risks are posed by use of its products, and what types of injuries plaintiffs might allege were caused by such use.

Keeping up to date on the ever-changing landscape of vaping law is also critical to understanding a company's litigation exposure. Federal regulatory agencies and state legislatures will continue to enact new rules and regulations governing vape products. Failure to adhere to such regulations exposes a company to litigation risk.

Keelin Kavanagh is a partner and Chris Gismondi is of counsel at DLA Piper