Electronic cigarettes, or e-cigarettes, have gained widespread
popularity in recent years as an alternative to traditional
cigarettes. While the traditional variety use burning tobacco to
create smoke that is inhaled, e-cigarettes are battery-powered
devices that vaporize a liquid containing nicotine (and may also
contain propylene glycol, vegetable glycerin, and flavorants) that
the consumer inhales without the combustion involved in traditional
cigarettes. While e-cigarette manufacturers and distributors
promote the potential advances of this new technology over
traditional cigarettes, the degree to which e-cigarettes are safe
is the topic of great debate, and the source of litigation.
However, as e-cigarettes are a relatively new development, state
and federal regulations and case law are in a state of evolution,
as many of the claims made against designers, manufacturers,
distributors and sellers of e-cigarettes are in their infancy.
Federal regulations governing e-cigarettes have not been finalized.
The U.S. Food and Drug Administration (FDA) has promulgated
proposed rules that are in the review stage and have yet to be
adopted. These proposed regulations could become a barrier to entry
into the business, and will set new requirements for those
companies currently in the business. But because federal
regulations have yet to be finalized, companies in the e-cigarette
business cannot point to final regulations to bar state claims, and
must be ready to defend individual suits or class actions.
Thus, with the changing legal landscape, product liability lawyers
who represent any entity in the e-cigarette business, or any
company that is contemplating entering the business, must stay up
to date on potential claims that may be brought against any such
company. Litigation concerning e-cigarettes has generated a wide
variety of potential claims. This article briefly outlines some of
those claims and specifically provides examples of the types of
product liability claims a company in the e-cigarette business
should be prepared to defend. Such claims include: state consumer
fraud lawsuits raising claims that e-cigarettes are misleading in
their marketing as safer alternatives to traditional cigarettes;
personal injury claims arising from fires and other harm caused by
product malfunction; and claims based on failure to warn about
potentially harmful chemicals in the product.
CONSUMER FRAUD, UNFAIR COMPETITION AND FALSE ADVERTISING
E-cigarettes, in many cases, have been marketed as a safer
alternative to other traditional tobacco cigarettes. However, those
challenging the products have asserted that, due to the nascent use
of these products, the health effects of e-cigarettes are largely
unknown. Thus, consumers have brought suit alleging that companies
have made false marketing claims by purporting that their products
have health benefits, when there may be a lack of evidence that
they do. For example, in September 2014, a consumer brought a class
action in California against an e-cigarette manufacturer alleging
that the company made false claims that its devices could help
consumers cease smoking, or would lead to "healthy
smoking." The complaint sought damages for deceptive
advertising, breach of express warranty, unfair competition and
violations of California's Consumer Legal Remedies Act.
A more recent class action suit was filed against an e-cigarette
manufacturer for allegedly promoting its products as a safe
alternative to smoking, notwithstanding a government report showing
that e-cigarettes contain carcinogens and other chemicals. The
action also alleged that the manufacturer made contradictory claims
when it stated that the product was not designed to help people to
stop smoking (in order to avoid federal regulation), while making
contrary statements on its website. The plaintiffs claimed
violations of California Consumers Legal Remedies Act,
California's Unfair Competition Law, and Florida's
Deceptive and Unfair Trade Practices Act. Recently, however, the
court refused to certify the class, holding that the
plaintiffs' damages methodology was deficient under Supreme
Court precedent because it did not permit the court to calculate
the product price absent the alleged misrepresentations.
In other recent federal actions, plaintiffs have brought claims
alleging that marketing statements such as "only vapor"
were misleading where the product allegedly contained carcinogenic
chemicals, like formaldehyde, but omitted any mention of
carcinogens in the advertising and labeling of the product.
Plaintiffs with these type of claims have alleged that consumers
incorrectly believed that they were only inhaling a safe water
vapor, and have sought money damages, including restitution and
punitive damages, and injunctive relief requiring proper warnings
about harmful chemicals on e-cigarette packaging.
FAILURE TO WARN
E-cigarette companies may also be exposed to claims of failure
to warn consumers of things in their products that could
potentially cause illness. Notably, in California, the state health
department in January 2015 reportedly characterized e-cigarettes as
a "community health threat" and cautioned that the
nicotine in e-cigarettes is just as addictive as in traditional
cigarettes. Additionally, second-hand exposure would include at
least 10 chemicals on the state's list of substances known to
cause physical harm. A public interest group subsequently sued 19
companies that sell the products and their liquids for failing to
provide consumer warnings under the California state regulation.
The group brought claims based on the defendants' failure to
warn consumers about exposure to the carcinogens formaldehyde and
acetaldehyde.
Similarly, in another putative federal class action in California,
plaintiffs alleged violation of state consumer protection laws when
a company advertised and sold e-liquid flavors that allegedly
included diacetyl and acetyl propionyl - chemicals that have
reportedly been shown to cause scarring in lungs, emphysema and
other respiratory issues - but failed to warn of the dangers of
these chemicals on its website.
PRODUCT MALFUNCTION, DESIGN DEFECT AND FIRES
E-cigarettes may rely on lithium-ion batteries and chargers to
heat up the nicotine liquid in the device and create the vapor. The
lithium-ion batteries and chargers are used in a variety of
products, but allegedly have a potential to fail and cause fires in
e-cigarettes because they may not have the built-in safety features
other devices contain. Thus, the products may be subject to a
manufacturing defect, and design defect claims arising from the
possibility of fires or other similar problems. Accordingly,
plaintiffs in some cases allege that e-cigarettes, including
lithium-ion batteries and chargers, are unsafe and that the
suppliers of these products fail to warn of harmful defects.
Notably, in an October 2014 report, the United States Fire
Administration (USFA) identified 25 e-cigarette fire incidents
reported in the news media between 2009 and August 2014.
The report found that most of the incidents occurred while the
battery was charging, and that a majority were caused by
e-cigarettes being connected to a charger which was not sold with
the device. The external charger can provide a current that may be
too high, allegedly resulting in a fire. However, the report also
indicated that fires caused by e-cigarettes are rare. Yet, these
concerns regarding battery fires also led the Federal Aviation
Administration (FAA) to warn airlines that they should require
passengers to pack e-cigarettes in carry-on bags rather than in
checked luggage. One such case of an e-cigarette malfunctioning and
causing a fire resulted in a $2 million verdict. The plaintiff
alleged that the e-cigarette battery exploded while she was
charging it in her car, sending metal shrapnel throughout the car
and setting fire to her seat and dress. The plaintiff allegedly
suffered second-degree burns on her legs, buttocks and hands, and
sued the distributor, wholesaler and retailer. The distributor
claimed that the charger must have provided 5 volts or more to the
device while charging, and the company warned users not to charge
the devices with more than 4.2 volts. The plaintiff alleged that
there was no warning until after the injury. The jury's award
included payment for future medical costs, past physical pain,
mental suffering, loss of enjoyment of life and other noneconomic
losses.
In another similar case, an e-cigarette allegedly exploded near the
plaintiff's face, burning his mouth and dominant hand, which
was holding the device. The doctors amputated his finger and he had
to undergo surgery on his tongue, which has allegedly impeded his
ability to eat. The plaintiff filed suit against the
ecigarette's manufacturer and designer and the stores where he
purchased the devices.
A consumer has also filed suit against an e-cigarette distributor
in cases where an e-cigarette exploded in his pocket and burned his
leg, requiring him to need skin grafts; and against an e-cigarette
distributor and seller of the device claiming that an e-cigarette
exploded near his face, blasting a large hole in his cheek and
giving him a concussion.
CONCLUSION
As e-cigarettes gather popularity, there will be a greater number of cases filed, accompanied by new theories of liability. Strict manufacturing controls and clear and accurate labeling will go a long way to reduce the exposure to suits arising from the use of these products. Manufacturers and other companies that are part of the chain of distribution for e-cigarettes should keep in mind that the scrutiny will come not only from plaintiffs' lawyers, but also from federal and state agencies that have only begun to scrutinize the use and sale of these new devices. Moreover, because consumers may base their claims on a host of theories, law practitioners should advise companies to obtain sufficient equity and/or insurance to withstand the cost of defending those claims, which could come in the form of individual lawsuits or even private class actions.
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