E-Cigarette Litigation is on the Rise: Here’s How the Experts Will Weigh In

Anjelica Cappellino, J.D.

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— Updated on February 18, 2021

E-Cigarette Litigation is on the Rise: Here’s How the Experts Will Weigh In

E-Cigarette LitigationWhile cigarette smoking has steadily declined over the past several decades in the United States, a relatively new vice has taken its place. Electronic cigarettes (also known as e-cigarettes, personal vaporizers, or electronic nicotine delivery systems) are battery-powered devices that produce heated vapor from a liquid solution containing nicotine and other flavors. They have been marketed as a healthier alternative to traditional cigarettes, as some do not contain any nicotine. E-cigarettes have been sold in the United States since 2007 and have rapidly become a multi-billion dollar industry with more than 2.5 million users. But with any relatively new product, there are various questions surrounding the use, safety, and other legalities of these cigarette alternatives. Electronic cigarettes have been, and will likely continue to be, the subject of litigation that will set precedent for the future of its products. Likewise, the expert opinions on these issues will be just as novel and potentially precedential.

Exploding E-Cigarettes

As electronic cigarette usage is on the rise, so are cases of the product exploding and burning its users. In 2015, a California woman was awarded $1.9 million in damages for severe burns she suffered after her e-cigarette battery exploded in her car. The lawsuit was brought against the e-cigarette’s distributer, VapCigs, its wholesaler, Cartons 2 Go, and the store where she purchased the product, and alleged that the defendants failed to meet reasonable safety standards and did not adequately warn about the known dangers.

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In another incident in California, an e-cigarette exploded near the user’s face, resulting in burns to his mouth and hand that was holding the device. The incident required immediate surgery on his tongue and resulted in the amputation of the user’s index finger. Another California resident lost an eye as a result of his e-cigarette exploding. Other similar lawsuits are pending in Florida, New York, and Texas, as plaintiffs allege that they suffered burns to their mouths, faces, and legs after their e-cigarettes exploded.

 A 2014 report by the U.S. Fire Administration cited 25 incidents of explosions and fires involving e-cigarettes between 2009 and August 2014, most of which occurred while it was charging. E-cigarettes work by using a heating element to vaporize a liquid solution contained in the device. It is powered a lithium ion battery, which can explode when overheating. Unlike many other battery-operated consumer products, there are no regulations, codes, or laws that govern the testing and safety of the batteries or electronic mechanisms contained in e-cigarettes.

With a lack of governing safety standards, it is particularly important for these product liability cases to rely on experts to testify to the design, manufacture, and warning labels of these devices. Due to the nature of the product, experts specializing in the fields of electrical and mechanical engineering will be useful in establishing the inner workings of e-cigarettes, particularly how heat can transfer and ultimately cause an explosion or fire. A fire investigation expert may also be needed to definitively establish whether the incident occurred from the e-cigarette or from another accelerant.

Other Potential Health Risks

 Arguably one of the reasons that electronic cigarettes have become popular is that it was marketed as a safer alternative to traditional cigarettes. However, the health effects of e-cigarettes are still subject to ongoing review and are largely unknown due to its lack of regulation. A number of class action lawsuits have been filed against the manufacturers regarding the health risks and lack of warnings on their products. As more studies are conducted and more data collected, it is likely the number of lawsuits will also grow.

While the U.S. Food and Drug Administration has joined other health experts in warning consumers about the risks, no clinical studies about the safety and efficacy of e-cigarettes have been submitted to the FDA. As a result, the agency is unaware of whether e-cigarettes are safe to use. Although the FDA has held that the devices may contain toxic ingredients, the concentration of those chemicals, including the specific doses of nicotine, are unknown. The FDA’s Division of Pharmaceutical Analysis was able to test small samples of e-cigarette cartridges from two popular brands. The testing found that one sample contained diethylene glycol (a toxic chemical used in antifreeze) and the other samples contained carcinogens.

Any e-cigarette lawsuit will need the assistance of various public health and medical experts to attest to the device’s affects on the consumer. Toxicologists and biochemists will be useful in establishing the concentration of chemicals and nicotine in the e-cigarette and whether said amount is safe for human consumption. Oncologists will be needed in cases where the plaintiffs are alleging the ingredients cause cancer, and pulmonologists will be able to testify as to the effects on the consumer’s lungs and respiratory systems.

Unlike conventional cigarettes or FDA-approved nicotine replacement products, e-cigarettes do not contain any health warnings. The agency has expressed concerns that e-cigarettes can increase nicotine addiction among young people, as the devices are currently sold without any legal age restrictions and are available in different sweet and fruity flavors which may be appealable to a younger demographic. Public health expert and marketing experts specializing in the field of drug and tobacco marketing will be useful to establish the necessary warning labels and advertisement practices of these products.

In addition, it is unclear which agencies and laws have jurisdiction over the product’s regulation, and whether e-cigarettes are governed by the Federal Food, Drug, and Cosmetic Act is an issue currently pending in federal court. Therefore, not only will health experts be helpful in ascertaining the health risks associated with e-cigarette use, but legal experts and tobacco control experts will also be needed to determine who is responsible for regulating the safety of the product in the first place.

Overall, electronic cigarettes are a fast-growing, largely unregulated industry. As the market continues to grow and the number of consumers steadily increases, questions concerning the device’s safety, regulations, and advertising will need to be answered. Experts in a variety of fields will likely be at the forefront in answering these questions as these issues are litigated.

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