JUUL Vaping Litigation Could Be as Big as Opioid Actions

Plaintiffs in the mounting JUUL mass tort litigation docket are pursuing the same successful legal theories against the maker of addictive nicotine vape pens that are being used against the pharmaceutical companies that made addictive opioids.

With the creation of a JUUL MDL (multi-district litigation docket), the litigation is on its way to being as big as the opioid MDL.
Plaintiffs in the opioid litigation recovered $465 million in November 2019 in State of Oklahoma v. Johnson & Johnson. JUUL, just like J&J, engaged in:

  • Deceptive marketing about the benefits of its products.
  • Downplayed the addictive risks by saying the vape pens were “totally safe.”
  • Caused a public nuisance worse than the opioid crisis.

Opioids were involved in almost 400,000 overdose deaths from 1999 to 2017, according to the U.S. Centers for Disease Control and Prevention. In comparison, 5.3 million youth were current e-cigarette users in 2019, up from 3 million students in 2017, according to the 2019 National Youth Tobacco Survey.

In the JUUL litigation, plaintiffs are similarly alleging the vaping giant created a public nuisance, violated deceptive trade practice laws and RICO laws, was negligent and is strictly liable for defective design and manufacturing of its “nicotine delivery systems.”
JUUL lawsuits also allege fraudulent concealment, conspiracy with tobacco companies, intentional misrepresentation, and infliction of emotional distress.

Tobacco company influence

The JUUL litigation is also about promoting a habit-forming product that turns customers into addicts. The FDA and Surgeon General both described the underage use of e-cigarettes as an “epidemic.”

JUUL’s market value is $24 billion (down from $38 billion), and there is a deep pocket in the litigation: the cigarette company Altria, which has a $92 billion market capitalization. Altria bought a 35% stake in JUUL in December 2018, paying close to $13 billion.

A few months later the CEO of JUUL stepped down and he was replaced by a top executive from Altria. Altria discontinued its own e-cigarette products and gave JUUL prime shelf-space with its traditional Marlboro cigarettes.

It is no surprise that JUUL’s marketing and advertising targeted minors, following the classic playbook of the tobacco companies. Colorful JUUL ads depicted young people dancing, portrayed the nicotine device as cool and rebellious, and offered kid-friendly flavors like Mango, Fruit, and Crème.

Reaching critical mass

JUUL litigation is in the “litigation phase” now that the MDL was created on October 2, 2019. Many attorneys will seek clients at this point in the litigation because it has reached critical mass, and there are scores of product liability lawsuits filed in federal courts nationwide.

The Judicial Panel on Multidistrict Litigation has recognized that there are common factual issues that are sufficiently complex to merit centralized treatment. The Panel created MDL 2913, JUUL Labs, Inc., Marketing, Sales Practices, and Products Liability Litigation. It designated U.S. District Judge William H. Orrick, III of the Northern District of California to hear the cases in San Francisco, where JUUL is headquartered.

JUUL is the primary defendant because it has a 75% market share of the vaping market. However, there are eight additional defendants: Beard Vape, Direct eLiquid, Electric Lotus, Electric Tobacconist, Eonsmoke, Juice Man, Tinted Brew, and VapeCo.

When it created MDL 2913, there were only 10 cases filed in federal court in 5 states. Now there are 182 cases from across the country. Plaintiffs include school districts, states, counties and individuals.

  • School districts had to divert dollars away from classroom instruction and instead spend it on counseling and programs to help inform students of the dangers of vaping.
  • Individual customers suffered addiction, respiratory system damage, permanent brain damage, mood disorders, stroke, heart attack, and other cardiovascular injuries. The mother of an 18-year old in Florida has filed a wrongful death action, Lisa Marie Vail, individually and on behalf of the Estate of Daniel David Wakefield, deceased vs. JUUL Labs, Inc., in US District Court in the Northern District of California.

Separately, Siddharth Breja, a former senior vice president at JUUL sued the company in October 2019, alleging that JUUL sent to market at least “one million mint-flavored e-cigarette nicotine pods that it admits were contaminated, and against Mr. Breja’s insistence and protests, refused to recall those contaminated pods or even issue a product health and safety warning.”

Harvard researchers announced on January 3, 2020 that they found the microbial toxin Glucan in JUUL pods. Glucan is a component of fungal cell walls that can cause inflammation in the airways and can lead to long-term lung damage, according to the researchers.

Anemic response from the government
A Congressional hearing in July 2019 produced testimony that JUUL said in a school that:

  • JUUL “was much safer than cigarettes” and that “FDA would approve it any day.”
  • JUUL was “totally safe.”
  • A student “…should mention JUUL to his [nicotine-addicted] friend…because that’s a safer alternative than smoking cigarettes, and it would be better for the kid to use.”
  • “FDA was about to come out and say it [JUUL] was 99% safer than cigarettes…and that…would happen very soon….”

The Trump administration’s response has been anemic. The FDA merely issued a warning letter “expressing concern” and saying the agency was “troubled.” In September 2019 the FDA said, “JUUL has ignored the law,” but then it only requested documents and threatened further action.

How JUUL is more dangerous than cigarettes

Just as tobacco use of teens dropped to 5% in 2017, the launch of JUUL has pushed the number of high schoolers using tobacco products back up to nearly 30%.

“Julling” is much more dangerous and insidious than smoking cigarettes. The JUUL pods are easily hidden from parents and teachers because they look like USB drives. A JUUL pod is far less conspicuous than a pack of cigarettes and a lighter. JUUL vapor smells far less than the pungent odor of burning tobacco. Students can exhale the JUUL vapor under their shirts to avoid detection.

The JUUL vapor is much less harsh than tobacco smoke, making JUUL easy to start using. Students call JUUL the “iPhone of vapes” because of its sleek and minimalistic design.

And then there is the JUUL high.

An interview with a 15-year-old describes the kick like this:

“The first time was in the lunchroom. Everyone else was hitting it and I was like “alright, I want to try that.” I guess I knew there was nicotine in it, but I had no idea that it had so much. When I hit it for the first time it was, like, really crazy. I felt a really big buzz off of barely anything.”

“It hurt my throat more than anything else I’ve done. I hit it and coughed immediately. At first, it was just fun and it was something that you could do anywhere. It’s so easy. Then it just became something I was doing nonstop, but I still felt a buzz. Now, I go crazy if I don’t have it. I don’t even feel a buzz anymore.”

The JUUL punch comes from a mega-dose of nicotine. One JUUL pod contains at least as much nicotine as a pack of cigarettes, or 20 cigarettes.

Nicotine is a neurotoxin that is one of the most addictive chemicals in the world. Nicotine is particularly dangerous to young people, whose brains are still developing through age 25. Nicotine is not only addictive but also permanently alters the structure of the brain and causes permanent mood changes and other cognitive disorders.

The Surgeon General concluded that “The use of products containing nicotine poses dangers to youth, pregnant women, and fetuses. The use of products containing nicotine in any form among youth, including in e-cigarettes, is unsafe.”

Marketing JUUL to Kids

JUUL was first launched in summer 2015 in schools, on social media and even billboards in New York City’s Times Square. The company put up YouTube videos, advertising in Vice Magazine, sponsorship of music events, and 50 highly stylized launch parties with free JUUL starter kits.

Just as the opioid companies paid doctors to shill their addictive product, JUUL paid social media influencers to promote its e-cigarette. JUUL’s ad agency said the 2015 “Vaporized “campaign “created ridiculous enthusiasm” for the campaign hashtag, #DoIt4JUUL.

By 2017, JUULing had taken off among America’s young people.

The marketing campaign came to a crashing halt after the FDA raided JUUL’s headquarters in October 2019, seizing more than 1,000 documents about the company’s sales and marketing practice. The JUUL MDL was created the same month.

Now that Juul had a huge base of young, addicted customers, it stopped selling candy flavors, pulled down all of its social media, limited sales to its website at www.JUUL.com, claimed that buyers must be at least 21, and asserted that “JUUL was developed as a satisfying alternative to cigarettes” for adults.

The website has “age verification” screening questions, which are easily spoofed with a parent’s driver license. The age verification is easily avoided by online resellers like eBay and Craigslist that have no age verification.

A starter kit sells for $35, JUUL pods cost $10 to $16, and the device costs $15 to $20. Exactly like cigarettes, the current flavors are Virginia tobacco, classic tobacco and menthol.

Today the company says, “JUUL was developed as a satisfying alternative to cigarettes.” But the lawsuit filed by the state of North Carolina alleges, “In reality, JUUL products are doing exactly the opposite of what JUUL claims, serving not as an “off-ramp” from traditional cigarettes for experienced smokers, but as an enticing “on-ramp” for young, inexperienced, and frequently underaged users.

Once again, it is up to America’s trial lawyers to hold a giant corporation accountable for its dangerous and damaging product.

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If you are interested in working smarter versus harder, and achieving the financial goals you have set for yourself and your firm, the Four Days to Mass Tort Success Course is the place to start. Click on the image below to register for the November course. You may also call or email Barbara Capasso or Anne-Marie Kopek at 954-530-9892, email barbara@masstortnexus.com or annemarie@masstortnexus.com

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“E-cigarette docket transferred to USDC ND California”

Mark A. York (October 3, 2019)

See Mass Tort Nexus Briefcase MDL 2913 for the full docket:








(MASS TORT NEXUS MEDIA) The JPML heard Juul arguments on Sept. 26 in Los Angeles, and on October 2, 2019 they issued the MDL 2913 transfer order, consolidating the Juul e-cigarette docket in the U.S. District Court, Northern District of California in front of Judge William Orrick.

In a move to get out in front of plaintiffs, JUUL Labs Inc. filed a motion on Aug. 29 to stay all cases in the litigation and requested the JPML assign the docket to the court in California

JUUL is accused of deceptive marketing practices and failing to warn consumers about the risks of its e-cigarette products. Lawsuits allege JUUL unlawfully marketed its products to teens, and failed to disclose the true amount of nicotine contained in its products.

See Mass Tort Nexus Briefcase MDL 2913 for the full docket



FDA Warning Letter to JUUL Labs, Inc. (September 9, 2019)  https://www.fda.gov/news-events/press-announcements/fda-warns-juul-labs-marketing-unauthorized-modified-risk-tobacco-products-including-outreach-youth

In November 2018, the FDA revealed that vaping had increased nearly 80% among high schoolers and 50% among middle schoolers since a year earlier. Public health experts have said that Juul has largely propelled the rise, commanding about 75% of the e-cigarette market in the United States.

There were communications between FDA officials in mid-October 2018, which detailed allegations of seizures related to Juul use The FDA found “no proof of causality, but at a minimum, an association with Juul,” Mitch Zeller, the director of the FDA’s Center for Tobacco Products, wrote to Scott Gottlieb, the FDA commissioner at the time. In an interview, Zeller said that the FDA had not been able to confirm that Juul use was associated with the seizures in two of the three initially reported cases

Although Juul demands age verification upon navigating to its website and holds a firm stance against minors’ use of Juuls, these vapes are still wildly popular with teens.

Depending on the state, no one under 18 or 21 is supposed to be able to purchase e-cigarettes or any tobacco products. But according to a report from the CDC, e-cigarette use is rising among middle school and high school students, and more than 3.5 million of them used e-cigarettes in 2018.

  1. Juul delivers massive doses of nicotine, putting youth users at greater risk of addiction
    The manufacturer has stated that each Juul “pod” (cartridge of nicotine) delivers as much nicotine as a pack of 20 cigarettes. However, research by Truth Initiativehas found that many young Juul users don’t know the product always contains nicotine.
  2. Nobody ever disclosed this comparative and now there are thousands of addicted young people who had no clue.
  3. In addition to the patented formula, juul pods contain a greater amount of benzoic acid, 44.8 mg/mL, compared to other e-cigarette brands, which are in the range of 0.2 to 2 mg/mL.

Advertising is part of the problem. According to the CDC, more than 18 million high school and middle school students combined were exposed to e-cigarette ads in 2014. And Stanford researchers point out that Juul’s marketing hasn’t been congruent with its adults-only stance.


What had once looked like a smart pair-up to rejoin the international cigarette giant with its former domestic parent has now crumbled under the weight of doubts about where the regulatory fist would fall. Altria owns a 35% stake in Juul Labs, the leading e-cig maker by far and the primary scapegoat for industry criticism because it is the face of the vaping market.

After careful consideration, Philip Morris CEO Andre Calantzopoulos said in a statement that it and Altria “have agreed to focus on launching IQOS in the U.S. as part of their mutual interest to achieve a smoke-free future.” All that other stuff they were discussing could be forgotten.

Juul said it’s suspending all broadcast, print and digital product advertising in the U.S., and will refrain from lobbying the Trump administration on its draft guidance. The announcement comes after a crackdown on e-cigarettes by the U.S. Food and Drug Administration, that has accelerated following a recent outbreak of severe lung disease that appears to be related to vaping. More than 530 Americans have been diagnosed with the illness and at least eight people have died. Juul is now the subject of a criminal probe in California.

FDA investigators are looking at the use of vitamin E acetate, a compound often used as a cutting agent to allow black market operators to use less pure cannabis oil when filling cartridges. While vitamin E is considered to be safe as a dietary or health supplement ingested in capsule or pill form, it can cause respiratory illness including pneumonia when inhaled.

About 55 lawsuits brought against Juul across the country were among the matters before the JPML panel at the hearing.

Recently,  Juul announced that CEO Kevin Burns would step down immediately and the company would suspend all advertisements of its products. The new CEO, K.C. Crosthwaite, comes from Philip Morris USA parent corporation Altria Group Inc., which has a 35% stake in Juul.

Recent developments include stores like Walmart have stopped selling e-cigarettes and vaping products and cities and states have banned the products. Juul also faces mounting regulatory pressure from the U.S. Food and Drug Administration, which is investigating Juul’s marketing claims to children, as have many state attorneys general.

JPML panel chairwoman Sarah Vance, who sits on the Eastern District of Louisiana, started by announcing this would be her last hearing as head of the MDL panel. U.S. District Judge Karen Caldwell of the Eastern District of Kentucky a current panelist, will be the new chairwoman.

Juul counsel, Austin Schwing, a partner at Gibson, Dunn & Crutcher in San Francisco, argued for the cases go to a court near his client’s headquarters in San Francisco before U.S. District Judge William Orrick of the Northern District of California, but was also open to U.S. District Judge Brian Martinotti of the District of New Jersey, while some plaintiffs counsel also supported Orrick.

In briefs before the panel, there was an initial request for two MDL’s to be created, with plaintiff’s counsel initially advocating for Orrick to oversee the Juul litigation related to misleading marketing that failed to disclose the nicotine in its products. While also requesting that Judge  Martinotti  hear the personal injury cases whose claims focused on pulmonary disease, seizures and other serious health problems.

Judge Vance clarified the denial quickly in the hearing, stating the cases were too massive and complex to be divided. “Events in the past few minutes have overtaken me,” she said.

Andy Birchfield, of Beasley Allen, also changed his mind about dividing the cases, said “we need an experienced hand” as a judge. He initially supported Martinotti, a judges who had overseen dockets New Jersey state court’s Multicounty Litigation Center before his appointment to the federal bench.

MDL No. 2913 – IN RE: Juul Labs, Inc., Marketing, Sales Practices, and Products Liability Litigation JPML Initial Transfer Order

Judge Orrick entered Pretrial Order No. 1 on the same day the JPML designated his court as the home of MDL 2913.

See Mass Tort Nexus Briefcase MDL 2913 for the full docket


JUUL Changed Nicotine Disclosures

Juul measures nicotine content by weight, which is different from most brands, which usually measure by volume. Juul originally only sold pods with 5% nicotine by weight, but started offering 3% pods in August 2018.

According to an older version of Juul’s FAQ page, one 5% pod contains roughly the same amount of nicotine as one pack of cigarettes, or about 200 puffs. However, this information is no longer available on Juul’s website, and there’s no precise information about 3% pods, either. However, an article in the New England Journal of Medicine says that the 5% pods contain a concentration of 59 milligrams of nicotine per milliliter of liquid.

In contrast, prior to the Juul frenzy most vapes contained roughly 1 to 3% nicotine by volume. A study in the journal Tobacco Control notes that the new average seems to be rising to that 5% mark. Juul’s creators increased the nicotine because they felt other vapes on the market couldn’t compare to the sensations delivered by regular cigarettes.

In the FDA warning letter to JUUL Labs, Inc. of September 9, 2019 the following “unauthorized marketing claims” were cited:
The warning letter identifies several statements, including statements discussed in testimony from a July 2019 Congressional hearing on JUUL. According to that testimony, a JUUL representative speaking with students at his presentation in a school stated that:
  • JUUL “was much safer than cigarettes” and that “FDA would approve it any day.”
  • JUUL was “totally safe.”
  • A student “…should mention JUUL to his [nicotine-addicted] friend…because that’s a safer alternative than smoking cigarettes, and it would be better for the kid to use.”
  • “FDA was about to come out and say it [JUUL] was 99% safer than cigarettes…and that…would happen very soon….”

Additionally, a “Letter from the CEO” that appeared on JUUL’s website, and also in an email that JUUL sent to a parent in response to her complaint that the company sold JUUL products to her child, states: “[JUUL’s] simple and convenient system incorporates temperature regulation to heat nicotine liquid and deliver smokers the satisfaction that they want without the combustion and the harm associated with it.”


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