Vaping in the Courts

The Legal Lessons Learned from the Fight against Big Tobacco

You may have heard the commercials, the ones that end with the dramatic warning: NICOTINE IS BRAIN POISON.

Launched by the Tobacco Control Program of the California Department of Public Health, the Flavors Hook Kids campaign seeks to educate the public about the country’s newest epidemic-teen vaping. Listeners learn that teen vaping is on the rise. According to the latest preliminary results from The National Youth Tobacco Survey by the Centers for Disease Control and Prevention, 27.5 percent of high school students reported using an e-cigarette in the past 30 days. (That is 7 percentage points higher than it was in 2018.) Commentators have been quick to blame their youthful flavors, suggesting that cotton candy, gummy bear, and graham cracker flavored e-cigarettes have helped fuel their popularity among middle and high school students.

Switch the channel. You might hear a news update about the mysterious outbreak of a pneumonia-like lung ailment affecting young, otherwise healthy, individuals. As of September 19, 2019, 530 medical cases of severe lung damage have been reported across the country, which experts have linked to the use of e-cigarette products.

Vaping is everywhere. It is in our schools, on our radios, in our hospitals. And increasingly, it is also in our courtrooms.

From Medical Case to Legal Case

Edith Anne and Robert Petrucci initiated legal action against a series of e-cigarette manufacturers and distributors on February 26, 2018. Filed in the Superior Court of Los Angeles County, the complaint concerns alleged injuries (bronchiolitis obliterans with organizing pneumonia) sustained as a result of exposure to the toxic chemicals found in e-cigarettes. The plaintiffs have eight causes of action, ranging from negligence, strict liability (failure to warn), and fraudulent concealment to intentional misrepresentation and negligent misrepresentation.

This case should sound familiar, an echo from the era of big tobacco litigation, when smokers, their families, and government entities filed hundreds of claims against tobacco companies. In the early 1950s, scientific reports began to emerge identifying a link between cigarette smoking and cancer. Then, from 1954 to 1973, smokers and their families filed individual lawsuits against cigarette manufacturers, claiming negligence, breach of warranty, and misrepresentation (e.g., Ross v. Philip Morris Company, Cooper v. R.J. Reynolds Tobacco Co., Pritchard v. Liggett & Myers Tobacco Company, Green v. American Tobacco Company).

The response? Tobacco companies refused to settle out of court, maintaining that even if tobacco is harmful to smokers (an assertion they continued to deny), users assumed the risk of cancer each and every time they lit up their cigarettes; tobacco manufacturers lacked sufficient knowledge of any causal links between smoking and cancer, a lack which precluded them from any duty to warn their customers.

These arguments worked. And they continued to work into the 1980s, after a second wave of lawsuits introduced failure to warn and strict liability elements. In the era of the Public Health Cigarette Smoking Act (1970), these plaintiffs argued that tobacco companies failed to take reasonable care to warn consumers about the potential dangers of cigarettes. The tobacco companies repeated the same refrain: smokers assumed the risk of cancer and other health problems when they started smoking (e.g., Cipollone v. Liggett Group, Galbraith v. R.J. Reynolds Tobacco Co., Roysdon v. R.J. Reynolds Tobacco Co.).

But things changed in the 1990s. This was the decade of class action suits (e.g., Engle v. Liggett Group, Moore v. American Tobacco Company, United States v. Philip Morris, Inc.). Plaintiffs began to have more success in their claims against tobacco companies, especially when those plaintiffs were government entities. At this time, dozens of states sued tobacco companies under state consumer protection and antitrust laws, noting the significant financial burden placed on public health systems as a result of the health problems associated with tobacco use. They also cited the tobacco industry for its deceptive and fraudulent marketing, highlighting its tactics of targeting children and concealing the negative health effects of smoking. Tobacco companies could no longer rely on their tried-and-true defense about individual responsibility.

From Big Tobacco to Big Vape

Let’s return to the Petrucci case. In response to their filing, the defendants submitted a series of demurrers to the fraudulent concealment and intentional misrepresentation claims. The plaintiffs claimed that they started using e-cigarettes as a way to stop smoking cigarettes. They continue, stating that they would not have adopted e-cigarettes if they were aware of the toxic chemical contained within them. Much like tobacco litigation in the 1980s, the plaintiffs alleged that e-cigarette manufacturers and suppliers had a duty to warn consumers about the toxic chemicals contained within their products.

Here, the plaintiffs adopt another set of legal techniques, the ones successfully deployed in the third wave of tobacco litigation-allegations of deceptive and fraudulent marketing. According to their filing, e-cigarette manufacturers published misleading advertisements. Fontem, for example, promoted its e-cigarettes with slogans like “ Take back your freedom with Blue eCigs the smart alternative to cigarettes,” “ Freedom to have a cigarette without the guilt,” and “ Rise from the ashes.” Such slogans, the plaintiffs argued, misrepresented e-cigarettes by suggesting they are safer to use than conventional cigarettes.

So far, the Petrucci case has survived demurrers against the fraudulent concealment and intentional misrepresentation claims. The case, however, is still young. The vaping illness outbreak has highlighted the gaps in scientific knowledge about the health impacts of vaping, both in the short-term and in the long-term. Much like the scientific research about tobacco in the 1950s, the causal links between vaping and lung diseases are still murky. Which toxic chemical(s) was responsible for the plaintiff’s injuries? What knowledge did the defendants have about their toxicity? How does that level of knowledge affect their duty to reasonably warn their consumers? Already, we can see that a historical analysis of tobacco litigation allows us to anticipate some of the difficulties the plaintiffs and the defendants might expect.

Originally published at https://blog.trellis.law.