As representatives from the Centers for Disease Control and Prevention and the U.S. Food and Drug Administration testified before members of the U.S. House of Representatives last month regarding recent illnesses connected to vaping products, the parallels with another famous congressional hearing 25 years ago were unmistakable.
Four years after executives from the largest tobacco companies testified before Congress about the dangerousness of cigarettes, Big Tobacco reached a landmark settlement that included more than $200 billion in payments to states in compensation for tobacco-related health care costs.
Now makers of e-cigarettes, which have been marketed as a healthier alternative to the traditional kind, find themselves in the dock over allegations that their products have been improperly marketed to minors, and in some cases caused deaths and serious illnesses among users. The ramping up of litigation raises an obvious question: Could e-cigarette makers be headed down the same road their plant-and-paper predecessors once tread?
Ben Whitley of Whitley Law Firm in Raleigh anticipates the suits against vaping and e-cigarette manufacturers in North Carolina will go in two directions: one addressing the addiction created by these products and the second being suits stemming from the lung injuries resulting from their use.
“The addiction cases are going to follow the same road as big tobacco,” Whitley said. “Especially in North Carolina because we have contributory negligence as a defense to a complete bar of recovery in items such as assumption of risk.”
While the contributory negligence defense could make the addiction cases more difficult to pursue, Whitley said plaintiffs may have better success with the injury cases on the basis of failure to warn.
“If JUUL did not say to the consumer, ‘Hey, look, these additives in these cigarettes could potentially give these lung disease,’ the consumer could have decided if they were going to take that risk. Well, they didn’t have those warnings, so the consumer can’t make that choice. So that defense in North Carolina of the assumption of risk doesn’t work. Assumption of risk defense does work in addiction cases because it is a well-known fact that nicotine is addictive. And it’s a fact that nicotine is in JUUL pods.”
Stuart Paynter of Paynter Law in Hillsborough and Washington D.C. said he’s talked to attorneys who were involved in the tobacco settlement and sees one difference between that and the vaping and e-cigarette litigation.
“I think it’s different in the sense that the tobacco industry was so large and so embedded by that point in our economy, particularly, of course, in North Carolina. It was much more of a behemoth than, for example, JUUL and some of these e-cigarette manufacturers,” Paynter said.
States getting involved
Regulation may come from litigation or legislation. Attorneys general from Colorado, Connecticut, Illinois, and Massachusetts are investigating JUUL, but North Carolina was the first to sue.
North Carolina Attorney General Josh Stein filed suit against JUUL in May, asking the court to limit what flavors the company sells, prohibit marketing to young people, and prevent teens from buying vaping products. Stein’s suit alleges JUUL is violating his state’s Unfair and Deceptive Trade Practices Act.
“JUUL’s business practices are not only reckless, they’re illegal. And I intend to put a stop to them. We cannot allow another generation of young people to become addicted to nicotine,” Stein said during the announcement in May.
Stein said JUUL has 75 percent of the overall e-cigarette market. In the complaint, Stein alleged that the company has played a central role in fostering the epidemic of e-cigarette use among youths by marketing its products to young people on social media platforms through social media influencers and sponsors who appeal to them. (Stein’s office declined a request for an interview.)
“North Carolina has one of the strongest unfair and deceptive trade practices act, I believe, in the country,” Whitley said. “It’s a great law that protects North Carolina consumers. And in those kinds of cases, the contributory negligence may not necessarily even come into play if you can prove that it was a deceptive marketing strategy and deceptive consumer strategy to not inform and basically, push items that they knew were dangerous.”
Since the Centers for Disease Control started tracking illnesses associated with e-cigarettes and vaping, 12 deaths have been confirmed in the U.S. As of Oct. 1, 805 cases of lung injury associated with the use of e-cigarette or vaping products had been reported in 46 states and one U.S. territory.
The CDC and the FDA are working with state health departments and other public health partners to investigate what it’s describing as a multistate outbreak of a lung injury associated with vaping known as electronic nicotine delivery systems (ENDS). But so far, the CDC has not found the reported illnesses connected to one single device or product.
So far, no deaths have been reported in North Carolina. The North Carolina Department of Health and Human Services says as of Sept. 18, 33 cases of respiratory illness have been reported that may be connected to e-cigarettes or vaping. The NCDHHS is recommending people stop using e-cigarettes or vaping products until the source of the illnesses can be identified.
Anthony Alberg, chair of the department of epidemiology and biostatistics at the Arnold School of Public Health at the University of South Carolina, said that although vaping products are distributed and used worldwide, there have been no international reports of vaping-related injuries.
“How the outbreak was identified, at first, was cases of severe respiratory distress in adolescents and young adults appearing in emergency rooms, and physicians were having a very hard time figuring out what it was, because it had all the appearance of a pulmonary infectious disease, but in fact, it involves no infection,” Alberg said.
E-cigarettes vs. tobacco
The CDC’s data show that two-thirds of victims are between 18 and 34 years old. In all reported cases, the victims have a history of vaping or use of e-cigarettes, but the CDC says it does not yet know the specific cause of the lung injuries.
“They have alluded a few times that it appears to be more likely THC or marijuana extract-based products than nicotine fluids,” Alberg said of the CDC’s investigation. “But they can’t rule out nicotine fluids. And they have also alluded to the seemingly higher risk associated with products that are being manufactured in homes for street sale rather than what someone would purchase in a store.”
Alberg was a member of the National Academy of Medicine Committee that researched a 2018 study report, the Public Health Consequences of E-Cigarettes, which concluded, “Evidence suggests that while e-cigarettes are not without health risks, they are likely to be far less harmful than conventional cigarettes.”
So back in 2018, scientists didn’t have the long-term data available to reach a conclusion on the health effects of e-cigarettes. But companies who produce e-cigarettes say they are a safer alternative to traditional tobacco.
Manufacturers of vaping products and e-cigarettes claim the illnesses reported by people who vape are not caused by using their specific products, but by accessories or refills that are made by third-party companies and sold by unauthorized outlets.
“The primary wrongdoers right now appear to be the black market, off-brand folks who are, maybe, taking some cost shortcuts in terms of their ingredients, versus tobacco, where you’re talking about multinational corporations that were among the biggest in the world that were deliberately engineering their product to make it more addictive and denying that it was dangerous,” said Wilmington attorney Michael Davenport, who was involved in class-action lawsuits involving breast implants and Fen-Phen. “I think there’s a different type of culpability here.”
If the black market flavor and pod manufacturers are using chemicals normally used as pesticides or vitamin E — which can solidify in the lungs, high levels of THC, or other substances which were not meant to be vaporized and inhaled, the suits could get more complicated.
“That’s like trying to go down and sue the heroin dealer on the corner because he stepped on your heroin with some baby laxative. You’re going to be chasing those rats until the cows come home,” said Wilmington attorney Scott Overholt. “You’re just never going to get at them.”
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