The Litigation Environment in the Vape Industry
The industry should anticipate more lawsuits and investigations from attorneys general and local municipalities.
April 03, 2020 at 02:20 PM
8 minute read
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.
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