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E-cigarette Industry Facing Litigation Across the U.S.

September 20, 2019

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E-cigarettes, also known as nicotine vaporizers or simply vape pens, have grown in popularity over the past several years. At the center of the explosive growth of this industry has been Juul, which controls approximately 80% of the e-cigarette market since debuting in 2015. Despite its growing popularity, especially among teens and young adults, Juul has been at the center of several consumer legal battles, most of which allege that Juul’s e-cig devices are extremely detrimental to users’ health.

Juul Labs Inc. has received a steady stream of lawsuits which it hopes to transfer to federal courts in California. So far, over thirty lawsuits have been filed against Juul, alleging that Juul unfairly and unlawfully marketed this product to young people without disclosing the severe risks of the product. Juul alleges that the cases are all similar to one another and should therefore be transferred to U.S. District Judge William Orrick of the Northern District of California.

Plaintiffs’ lawyers, however, are pushing for a transfer to New Jersey or Maryland courts, where a federal judge issued a groundbreaking ruling against the U.S. Food and Drug Administration related to the timeline of its approval of e-cigarettes. It is unclear whether the federal courts will grant Juul’s pending motion.

The pending cases in federal court include a suit filed by a New Jersey teenager, who is suing JUUL in federal court, claiming that the pervasive social media marketing of the popular device led to his nicotine addiction, hospitalization and serious health problems. According to the filing, <u>Divello v. JUUL Labs</u>, Case No. 2:19-cv-16915, 18-year-old Matthew Divello began using JUUL vapes in early 2017 while in his third year of high school. Divello alleges that in the past 18 months of using JUUL vapes, he has suffered behavioral and cognitive problems, declining academic status, and was hospitalized for three days in August. During his hospitalization Mr. Divello battled fever, nausea, and severe vomiting, all symptoms tied to high levels of nicotine.

At the time Mr. Divello began using JUUL products there were no warnings about nicotine or the risks of nicotine addiction anywhere on the product's packaging. Studies have shown that e-cigarettes, initially marketed in flavors such as fruit medley and crème brulee, contain three times more nicotine than a pack of cigarettes marketed to adults. It appears that there a numerous claims that continue to mount against JUUL based on allegations of failure to warn. These lawsuits and the subsequent rulings will shape regulations for the e-cig industry in the years to come. As Mets broadcaster Bob Murphy used to say, the E-Cig industry is "looking down nine miles of bad road" right now.  Thanks to Steve Kim for his contribution to this post.  Please email <a href="mailto:BGIbbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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