Although the steady decline in cigarette smoking in recent decades has caused the tobacco industry to take a hit, a new vice has taken the United States by storm. Electronic cigarettes (also known as e-cigarettes, personal vaporizers, or electronic nicotine delivery systems) have rapidly become a multi-billion dollar industry with more than 10.8 million American adults currently using e-cigarettes, and with one in three e-cigarette users vaping daily.
E-cigarettes have been sold in the United States since 2007. Also referred to as “vapes” or “vaping”, these battery-powered devices produce heated vapor from a liquid solution containing nicotine and other flavors. Originally marketed as a healthier alternative to traditional cigarettes – as some e-cigarettes do not contain any nicotine – the potential dangers of vaping have recently become more widely known to the public.
With federal health officials and medical experts warning consumers about e-cigarette use, and a number of reported illnesses alleged to have been caused by vaping, lawsuits against e-cigarette companies are rapidly mounting. The majority of the lawsuits are against JUUL Labs, an electronic cigarette company that comprises approximately 75% of the electronic cigarette market.
The litigation surrounding e-cigarettes, in some respects, is reminiscent of the lawsuits against Big Tobacco. However, as a relatively new product on the market, e-cigarettes present their own novel questions and precedent-setting issues. Like the tobacco lawsuits decades ago, expert witnesses will undoubtedly play a huge role in the outcome of these cases and the future of these products.
The Allegations: Lung Disease and Deceptive Marketing Practices
Currently, there are a number of lawsuits pending against e-cigarette manufacturers in California, New York, Indiana, Ohio, and other states alleging that e-cigarettes cause lung disease and that the product was deceptively marketed, particularly to teenagers.
One Ohio lawsuit, filed by a mother on behalf of her two teen daughters, alleged that JUUL failed to warn them of the high levels of nicotine in its products, and that the two underage teens quickly became addicted and picked up a habit of smoking two JUUL pods a day – the nicotine equivalent of two packs of cigarettes.
Similarly, a New Jersey father launched a proposed class action against JUUL in mid-September, claiming that his son became addicted to e-cigarettes and was unaware of its nicotine content and harmful effects. The cases allege a number of health conditions caused by vaping – such as heart disease, lung illnesses, and seizures (a known symptom of nicotine poisoning). One plaintiff in a California suit alleges that he suffered a debilitating stroke caused by his use of JUUL products.
The lawsuits also focus on fraudulent marketing practices, with many alleging that the defendant companies were purposely marketed to minors who have never smoked cigarettes and were offered as a safer alternative, despite their higher nicotine dosage.
As with any claims against a relatively new product, the data concerning e-cigarettes has been slowly but surely building. Between the Centers for Disease Control, the U.S. Food and Drug Administration, and a number of state health departments, there have been an estimated 800 confirmed and probable cases of lung illnesses – including 12 deaths – all related to vaping products. This number includes vaping of either nicotine or marijuana.
On September 9, 2019, the U.S. Food and Drug Administration issued a warning letter to JUUL concerning the company’s practices of marketing and advertising e-cigarettes as safe. The letter cited various false statements from JUUL representatives to students lauding the safety of their products, saying that JUUL “was much safer than cigarettes” and that the “FDA would approve it any day.” As Dr. Ned Sharpless, the acting FDA commissioner, stated: “Regardless of where products like e-cigarettes fall on the continuum of tobacco product risk, the law is clear that, before marketing tobacco products for reduced risk, companies must demonstrate with scientific evidence that their specific product does, in fact, pose less risk or is less harmful.” As he further stated, “JUUL has ignored the law and, very concerningly, has made some of these statements in schools to our nation’s youth.”
How Can the Experts Weigh In?
Any e-cigarette lawsuit will need the assistance of various public health and medical experts to attest to its effects on the users. 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. Likewise, whether the product, as previously advertised, is a safer alternative to regular cigarettes may also hinge on this data. Oncologists and pulmonologists will be able to testify as to the effects on the consumer’s lungs and respiratory systems as well as whether e-cigarettes increase a user’s likelihood of developing cancer.
The issue of causation in smokers of both regular and electronic cigarettes will also likely come into play, with some experts suggesting that e-cigarettes help users wean themselves off of traditional cigarettes, while other experts find that e-cigarettes reinforce a user’s overall smoking habits of both. A survey conducted by the Annals of Internal Medicine found that out of the 10.8 million adults in the United States that vape, 54.6% were also smoking regular cigarettes, while 30.4% had quit smoking them. About 15% of vape users reported that they have never tried regular cigarettes. More than half of the users surveyed were younger than 35 years of age, with the highest usage found in the 18- to 24-year-old age group. Those suffering from cardiovascular disease, cancer, asthma, and chronic obstructive pulmonary disease were also more likely to use e-cigarettes.
Whether these diseases are evidence of causation or correlation to e-cigarette use, especially compounded with the high rate of regular cigarette usage, will be a question for the experts. As Dr. Michael J. Blaha, the study’s senior author and associate professor of medicine and epidemiology at Johns Hopkins, states: “The use of e-cigarettes in the U.S. is a complicated picture…People who try e-cigs are at risk for a variety of health conditions. But you have former smokers, daily smokers, occasional smokers – it’s going to be difficult to sort out the health effects.”
Another facet to causation is the issue of illicit substances, such as marijuana or other synthetic alternatives, being used in an e-cigarette. The FDA’s Office of Criminal Investigations is currently looking into this aspect of use, and though not seeking to prosecute individual users of illicit substances, may be able to provide answers as to the prevalence and effect of illicit substances to e-cigarettes.
As to its advertising practices, public health experts and marketing experts specializing in the field of drug and tobacco marketing will be useful to establish the necessary warning labels and advertising practices for these products.
In short, the litigation of e-cigarettes has just begun and shows no sign of slowing. Hundreds, if not thousands, of lawsuits are expected to be filed. As a fast-growing product in an almost entirely unregulated, novel industry, the potential dangers of e-cigarettes are just starting to be uncovered and investigated. There are far more questions than answers at this juncture while is why the work of experts in these fields will be critical to the future of e-cigarette litigation.