On February 5, members of the Sanders Phillips Grossman (SPG) JUUL Task Force presented a webinar about the medical and legal issues surrounding the firm’s ongoing vaping litigation.
Members of the Task Force who presented the webinar include attorneys Kelly Hyman, Melissa Sims, Danielle Mason, Tina Bullock, Vicki Maniatis, and Randi Kassan. While SPG has already pursued personal injury lawsuits against JUUL Labs, the task force will fight the teenage vaping epidemic in a different way: at the local level. The goals of the task force are to raise awareness of the epidemic and solicit recovery damages for schools, municipalities, states, and government agencies to curb teenage tobacco addiction. The damages they will pursue include monitoring costs, health costs, and behavioral costs.
This legal approach is similar to the one used by local and state municipalities to recover costs associated with the opioid epidemic from the pharmaceutical industry. In fact, SPG previously established its opioid task force to fight back against painkiller manufacturers. Just as the maker of Oxycontin claimed it was less addictive and less subject to abuse than other opioids, JUUL Labs marketed its e-cigarettes as a safer and less addictive alternative to traditional nicotine. The former led to the national opioid crisis; the latter to a vaping health crisis.
Background on JUUL Litigation
For decades, our country made progress in reducing youth tobacco use. That progress has come to an end in recent years, however, due to tobacco vaping generally and JUUL Labs specifically.
Juul Labs, Inc. was founded in 2015 and became the most popular e-cigarette in the U.S. by the end of 2017. JUUL products made up more than 70 percent of the U.S. vaping market in 2018. That same year, the CDC reported that 4.9 million middle and high school students were tobacco product users, up from 3.6 million in 2017. According to the CDC, this increase was driven by a surge in e-cigarette use.
By 2019, the CDC and FDA reported “disturbing rates” of teenage e-cigarette use, with more than one million reporting daily use. As of February 4, 2020, 2,758 e-cigarettes, or vaping, product use-associated lung injuries had been reported to the CDC. Sixty-four vaping-related deaths have also been reported.
JUUL vaping lawsuits allege that JUUL targeted minors with its advertising, and by promoting flavors such as mango and fruit medley. The cases claim that JUUL failed to warn about dangerous and potentially deadly vaping side effects, including lipoid pneumonia, popcorn lung, and nicotine poisoning. In addition to personal injury cases, JUUL Labs is also facing class-action lawsuits over its marketing practices, as well as government claims for vaping-related costs.
The webinar was divided into four parts under the direction of SPG’s Task force member and webinar Moderator, Vicki Maniatis: vaping health dangers, government claims, and two separate presentations about JUUL litigation. It was chock-full of information useful not only to lawyers but also to the general vaping public—especially anyone who has suffered harm from vaping.
Vaping Health Dangers
Tina Bullock laid out the health danger of vaping in a presentation that dispelled the myth that vaping is a safer alternative to traditional tobacco products.
A common misconception among youth is that when they vape, they’re only inhaling water vapor. The truth is that 99% of e-cigarette products contain nicotine. Often, this nicotine is delivered in extremely high doses that are highly addictive and cause rapid onset dependence. Plus, vaping cartridges contain other chemicals such as volatile organic compounds, carbonyl compounds, heavy metals, and flavoring. Once heated, these ingredients combine to form new or more potent compounds. Vitamin E acetate, used as a vaping product additive, has been strongly linked to the outbreak of vaping-associated lung injuries and illness.
These facts do not square with the image of vaping promoted by vape product manufacturers and sellers. For example, as Tina explained, they falsely claim that you can vape and avoid inhaling diacetyl— something you cannot do with regular tobacco. They also claim that there is no evidence that e-cigarettes act as a gateway to smoking tobacco—despite evidence that vapers are 4 times more likely to start smoking cigarettes. They even deny the link between vaping and popcorn lung disease.
After describing the myriad health issues that can arise from vaping, the attorneys discussed how issues like prior cigarette usage can complicate litigation. They then described the types of proof that are needed for a JUUL lawsuit (e.g. records of hospitalizations, doctor’s visits, school nurse visits, and rehab centers). Although most medical records will state if the client is vaping, this may not be true for minors, who might not want to admit they vape in front of their parents. Finally, Kassan and Hyman talked about the influence of school, friends, social media, and marketing on teen vaping.
The penultimate webinar segment was a presentation by Melissa Sims on the evolution of local government torts. Melissa explained how law has evolved to allow local governments to file legal claims that traditionally have only been allowed by individual plaintiffs. She cited government actions to recover the costs of abating a public nuisance, such as opioids and chemical pollutants.
For instance, in many of the opioid cases, states, cities, and counties are seeking to hold pharmaceutical manufacturers and distributors responsible for the effects of opioid addiction, and claim injury in the form of expenses incurred in providing public services in response to drug abuse, including law enforcement, emergency medical services, prisons, and addiction treatment. Local governments are now putting forth similar claims against JUUL, claiming that the health problems tied to vaping created a public nuisance.
JUUL Litigation (Part 2)
Danielle Mason presented the fourth and final webinar segment, which laid out the three different tracks of JUUL Litigation.
Building on Melissa’s presentation, Danielle talked about the different costs that school districts and municipalities have incurred from the vaping epidemic and hope to recover through litigation. Among these costs are cessation programs, emergency health kits, and counselors.
Danielle also talked about JUUL class action claims for false advertising. JUUL is accused of insufficient nicotine warnings on ads, lack of disclosure about nicotine potency, lack of disclosure of vaping health effects, and lack of disclosure of specific vaping harm to teens.
Finally, Danielle pointed out that JUUL is far from the only defendant in these cases. Also named as defendants are JUUL investor companies and retailers that sold JUUL products.