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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