No nation wants to fight a two-front war, although the U.S. and Germany both did it during the last century. Now, the e-cigarette industry finds itself in the same position. On one front is an ongoing and growing army of injury plaintiffs and their lawyers. On the other front are government regulators who threaten the industry's “freedom” to sell their products with little in the way of accountability for how they market them and to whom.
As was the case for the United States' involvement in the Second World War, the e-cigarette industry's two-front war actually represents two separate conflicts. On the legal front, a number of lawsuits have been filed by individuals around the country who claim that e-cigarette manufacturers such as JUUL Labs were less than forthcoming about the hazards of nicotine addiction and/or severe respiratory injuries and illnesses.
For example, one 19-year-old plaintiff in New Jersey who started using e-cigarettes at age 16 says, “I'm so hooked on vaping, I sleep with my JUUL” – so he can start right in as soon as he awakens in the morning. In Pennsylvania, a class action was filed in March of 2018 in which the lead plaintiff stated that he took up vaping in order to stop smoking – and instead, found himself even more addicted to nicotine than before.
Most current injury lawsuits center around the issue of nicotine addiction. However, this is changing as a growing body of evidence begins to show that vaping can have other grave health consequences. At the time of this writing, approximately 300 people – primarily young adults and youth – have shown up at hospitals suffering from respiratory disease that doctors believe are due to toxic chemicals contained in vape liquids.
One plaintiff in Chicago, a 20-year-old woman, also says she started “Juuling” when she was 16 – and now, her addiction has led to “mood swings, fits of rage and pulmonary issues.” Meanwhile, another lawsuit pending in California claims that the plaintiff's addiction to vape products caused him to experience a hemorrhagic stroke. The complaint cites medical research demonstrating that “e-cigarettes significantly increase blood pressure and arterial stiffness” – both of which are risk factors for stroke and cardiac arrest.
That's just an example of lawsuits filed by individuals. Government agencies, motivated in part by increasing public outrage, have been bringing their own lawsuits against e-cigarette companies. During the last week of August, the state of North Carolina announced that it was suing eight e-cigarette manufacturers over allegations that they have been marketing their products to minors.
That brings us to the regulatory front in Big Vape's current war. It is an unfortunate fact of history that government regulations will invariably lag behind new technologies. The concept of “vaping” was first developed in the 1927 (for the purpose of administering medical compound), but it was not until the early 21st Century that the first “Electronic Nicotine Delivery System,” or ENDS, was perfected. The first modern electronic cigarette arrived on store shelves in 2003. However, it was another 13 years before the FDA finally ruled that e-cigarettes and vape products were subject to regulatory oversight under the 2009 Family Smoking Prevention and Tobacco Control Act.
Even then, it was tantamount to slamming the barn door after the horse had bolted. Under FDA “deeming rules,” manufacturers of new tobacco and nicotine delivery systems – in this case, electronic cigarettes – must apply for premarket authorization prior to introducing such products to the market. However, e-cigarette products have already been available for over a decade. Because of this reality, the FDA has given the industry until August 8, 2022, to apply for premarket approval or to file “substantial equivalence” exemption requests and reports.
In response to this apparent lack of action on part of the FDA, the City of San Francisco (where JUUL Labs is headquartered) took initiative. In June 2019, the city's Board of Supervisors announced the first complete ban on marketing and sales of e-cigarettes. Speaking to National Public Radio, city attorney Dennis Herrera said, “This temporary moratorium wouldn't be necessary if the federal government had done its job.” He accused the FDA of abdicating its responsibility.
Another government agency, the Federal Trade Commission, has recently begun its own investigation of JUUL Labs and allegations that the company has targeted underage consumers, using social media “influencers” and other deceptive marketing practices. According to the original story published in the Wall Street Journal, the FTC is considering filing its own lawsuit.
Meanwhile, in Congress, Senator Dick Durbin (D-IL) – whose own father died from lung cancer – has introduced legislation that would restrict the marketing and sale of candy and fruit flavored vape that he and others say are intended to appeal to kids. If signed into law, vape manufacturers would be required to prove that their products are not intended to appeal to underage youth.
There is of course pushback from the vape industry and its allies. The American Vaping Association, defending flavored products as important in helping adult smokers to quit, calls Durbin's legislation a “backdoor attempt...to ban all flavors in vaping products by imposing costly requirements” they say are “more burdensome than even those imposed on pharmaceutical companies.”
Conservative media sources and right-wing organizations such as the Competitive Enterprise Institute (CEI) have also come to the industry's defense. A recent article posted on the CEI website claims that recent cases of vape-related lung disease were due not to commercial vape products, but rather to “illicit” home-brewed products made from marijuana (which may be true in a handful of cases – but fails to explain the majority of illnesses). At the same time, Fox News reports that “counterfeit e-cigarette products” are to blame for the mysterious lung disease, claiming that “legal vapes have been actively regulated by the FDA since August, 2017.”
Attempts to enact stronger regulatory restrictions on vape face yet another threat, as Phillip Morris – which owns 35 percent of JUUL Labs – considers a merger with Marlboro-maker Altria Group. If this merger goes forward, it would create the largest, most powerful tobacco conglomerates on the planet. And if history is any indication, the new corporate juggernaut would be spending million on lobbyists who will be swarming Capitol Hill, passing around cash, drowning out the voices of citizens and local officials who want to see stronger action taken to stop the vape industry from replaying the story of Big Tobacco in the last century.
One thing is certain: the courts are going to be very busy over the coming years hearing cases involving vape advertising and illnesses.