New Mexico E-Cigarette Shop Hit with $2.5 million Jury Verdict for Defective Lithium-Ion Battery

A New Mexico man has been awarded $2.5 million in damages for injuries caused by a defective lithium-ion e-cigarette battery. The incident, which happened back in 2016, left Andrew Dean Snelling with extreme burns on his hands and left leg due to the battery catching fire in his pocket. 

The battery was produced by Chinese manufacturer Shenzhen MXJO, which was released from the suit because the court did not have jurisdiction over the company. Because of this, the court came down on the shop that sold the defective e-cigarette battery. 

The shop, Tribal Vapors of Alamogordo, did not retain legal counsel or appear in the case. 

This incident is among many others involving defective lithium-ion e-cigarette batteries that have caught fire or exploded, causing severe burns and even death. According to a study from George Mason University, there were at least 2,000 visits to emergency rooms in the US for e-cigarette related burns and explosion-related injuries from 2015-2017. The National Institutes of Health (NIH) has also published a review of the common injuries in these incidents. 

The 18650 lithium-ion battery has been most commonly linked to vape battery malfunctions. This battery is used in many products other than e-cigarettes, like power tools, flashlights, laptops and even electric cars. In consumer products, the 18650 usually requires users to manually remove the battery from the product in order to charge it. This action can damage the insulating wrapper, potentially leading to metal-to-metal contact and causing fires and explosions. 

The FDA has published tips to avoid vape battery explosions. President of the American Vape Association George Conley provides the following guidance to people using 18650 lithium-ion batteries: 

  • Never use a battery that has been damaged, or exposed to extreme temperatures
  • Do not store 18650 batteries in pockets or bags. Always use a protective case, sold in most vape shops, for storage.
  • Do not leave batteries on a charger longer than necessary
  • Do not get batteries wet
  • Move away from the device quickly if you feel it getting abnormally warm
  • Do not block ventilation holes on the device

 

E-Cigarettes, Including JUUL, Under Review and Potentially Banned

In an effort that anti-smoking advocates are calling way overdue, the FDA is investigating the safety of menthol and other flavoring additives in tobacco products to determine if these additives should be more heavily restricted or even banned.

This investigation comes as e-cigarettes continue to gain overwhelming popularity amongst consumers. The FDA wants to determine whether these potential health risks necessitate readdressing the restrictions placed on e-cigarettes and other tobacco products containing flavoring additives. Earlier this week, Commissioner Scott Gottlieb, MD, announced that the FDA has issued an advanced notice of proposed rulemaking (ANPRM) – a process of collecting data and hearing expert testimony on the costs and benefits of tobacco flavoring additives to determine whether these products should be more heavily restricted or even banned. The FDA conducted an ANPRM to determine whether to ban methanol and other flavoring additives in 2013. To the detest of anti-smoking groups, no changes followed this ANPRM. The current ANPRM pertains to e-cigarettes and other non-combustible tobacco products. Flavor additives in combustible tobacco have been banned since 2009.

Almost all popular e-cigarettes contain some form of flavoring additive. Gottlieb noted that the intention of the flavoring additives in these products was obviously to appeal to the youth, middle-school and high-school students. Gottlieb said that he recognized the validity of the argument that these flavors help adult smokers to wean off of cigarettes. However, Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, disagreed with the validity of this claim. Myer explained that while there is an abundance of evidence that e-cigarette flavorings are associated with increased use among teens and young adults, there is almost no evidence that the flavoring will help cigarette smokers to quit.

If the FDA does decide to restrict or ban some or all tobacco flavoring additives, the agency will conduct a follow-up comment period. Robin Koval, president of Truth Initiative, said that in the best-case scenario, it will be several years before the restrictions or bans are put into effect. “The FDA is taking the right actions, so we are optimistic that they are serious about this,” Koval said. “But time is of the essence. This has taken way too long.”

 

Chicago Files E-Cigarette Lawsuit Over Flavored Tobacco After New Tobacco Regulations

The city of Chicago has sued an e-cigarette seller over its alleged sales of flavored tobacco products and for marketing to minors, saying the sit flaunts its defiance of both federal regulations and local age restrictions on buying tobacco and electronic cigarettes.

The complaint states that Vapes.com, which is owned by Equte LLC, markets and sells flavored e-cigarettes to residents, despite a new law passed in September that makes it illegal to sell such products to Chicagoans.

“E-Cigarettes are unhealthy and addictive, and businesses deliberately target young people in the hope that they’ll develop lifelong customers,” Mayor Lori Lightfoot said in a statement. “The City of Chicago’s message to vaping companies is clear: If you break the law, we will go after you, especially if you try to sell to our youth.”

While the minimum age for buying tobacco in Chicago is 21 years old, Vapes.com and its social media platforms only ask that users be 18 and over and don’t employ the “age gate” features that YouTube and Instagram offer.

The city say it has filed a number of lawsuits against vape companies for selling to underage Chicagoans, but this is the first suit seeking to enforce the recently passed prohibition against flavored vaping products.

As the FDA began its crackdown on the vaping industry last year for allegedly targeting minors and getting them addicted to nicotine, it warned retailers about selling fruit-flavored e-cigarette products without approval.

 

Juul, Altria Must Face Public Nuisance and Negligence Claims

Consumers and government entities accusing Juul and Altria of unleashing a youth vaping epidemic cleared a hurdle in sprawling multidistrict litigation against the companies when a California federal judge found that their public nuisance and negligence claims pass legal muster.

In a 152-page order, U.S. District Judge William H. Orrick said the plaintiffs accusing the companies of deceptively marketing vaporizers to hook kids on nicotine had adequately pled their cases, rejecting a host of arguments by Juul Labs Inc. and Altria Group Inc.

He said the complaints adequately claimed that Juul’s conduct – such as target social media marketing and sale of mango-and mint-flavored products – “created and maintained an illicit youth market of school-age youth addicted to nicotine, causing extreme disruption in classrooms and unique harm to schools.”

“This alleged conduct hooked millions of teenagers onto vaping with an addictive product that is easily concealed in schools, and foreseeably caused a multitude of problems for the school districts,” Judge Orrick said.

The design and deceptive marketing claims undergirded the civil Racketeer Influenced and Corrupt Organizations Act claims in the suits, which say Juul and Altria executives conspired for the common purpose of “maintaining and expanding the number of nicotine-addicted e-cigarette users” to grow Juul’s “massive, and ill-gotten, share of the e-cigarette market.”

Altria has argued it can’t be held liable for Juul’s actions before the 2018 deal, disputing the plaintiffs’ claims that it worked with Juul behind the scenes beforehand and laid the groundwork for the crisis with its lobbying efforts. Juul, meanwhile, has argued that there is nothing illegal about selling flavored products, blasting the suits as “expansive and unfounded.”

Representatives of the parties did not immediately respond to requests for comment.

 

Juul Labs, Altria Ask Judge to Toss RICO Claims From JUUL MDL

Juul Labs and minority shareholder Altria Group asked a California federal judge on Monday to toss Racketeer Influenced and Corrupt Organizations (RICO) Act and public nuisance claims made against the e-cigarette manufacturer in an ongoing federal multidistrict litigation that claims the companies and their stakeholders collaborated to defraud the public and created a youth vaping epidemic.

U.S. District Judge William H. Orrick presided over the hearing in the San Francisco Federal Courthouse.

Defense attorneys representing Juul Labs and Altria Group (parent company of Philip Morris USA) said that the RICO allegations made against their clients were baseless, asking for those charges to be immediately dismissed.

According to the defendants, these charges are preempted and frustrated FDA policy objectives.

Plaintiffs – made up mostly by a consolidation of school districts – argue, however, that by giving the FDA authority over tobacco products in the Tobacco Control Act, Congress was aware of the possibility for private lawsuits under state law, due to the previous fraud of Big Tobacco that was exposed in numerous state and private lawsuits brought over time.

The public nuisance claims argue that the companies defrauded the public by presenting Juul products as a healthier alternative to traditional cigarettes, with no scientific evidence to back that claim.

RICO claims charge that the companies presented this same message to a youth demographic and collaborated to advertise to an underage market using marketing tactics such as featuring young models in advertisements, pay-for-promotion schemes with pop culture figures, bright and colorful ads, exaggerated presence on social media platforms popular in youth culture, and flavored products that appeal to a youth market – tactics not unlike those claimed against Altria (Philip Morris) in previous litigations which found the company had targeted young people in cigarette ads.

“Sellling a flavored product is not fraud”, said Peter A. Farrell of Kirkland Eliis LLP representing the defendants. The defense went on to argue that the companies in question never spent money on the products at issue and that the plaintiffs did not adequately plead that any RICO enterprise existed.

The defense went on to categorize their clients’ actions as “normal business dealings”.

When pressed to describe how the companies participated in a RICO enterprise, the plaintiffs said that the damage found on schoolgrounds nationwide can be directly tied to the defendants’ “sham” youth prevention campaign and their campaigns to market to America’s youth. According to testimony, the plaintiffs went on to tell the judge that Juul representatives purgered themselves when they told Congress that they had no interest in targeting the youth market. “Kids were their target market.” Stated Sabita J. Soneji, representing the plaintiffs.

Soneji went on to explain that Altria Group – the largest distributor of tobacco in the world – saw in Juul a “pipeline to replacement smokers”, which prompted them to become a minority investor in Juul in an effort to once again expand the nicotine-addiction demographic range.

The companies then collaborated to mislead the public about the safety of their product and target the youth demographic to create a new generation of smokers.

 

Lawmakers Push For Ban on E-Cigs Amidst COVID-19 Pandemic

Lawmakers are pressing the Food and Drug Administration to take electronic cigarettes off the market to help mitigate the COVID-19 crisis. They claim that using vape devices significantly increases a person’s risk of acquiring the pervasive coronavirus.

Illinois representative Raja Krishnamoorthi cited that vape users are five times more likely to get coronavirus, and those who vape and smoke are seven times more likely. These stats come from a recent study in the Journal of Adolescent Health, which Krishnamoorthi included in a letter to the FDA.

One of the main concerns being addressed by lawmakers is the limited availability of coronavirus tests. Those who vape and smoke are reportedly nine times more likely to seek a COVID-19 test than others. Some people are stuck waiting weeks for an available test, so putting a halt on vaping would help free up the system, according to the Illinois representative.

Furthermore, the FDA’s regulation of vaping requires vape companies to submit an application that satisfies certain public health criteria. But shortages of laboratory resources as well as travel restrictions have ultimately extended the vaping application deadline from May 12 to September 9 of 2020.

COVID-19 has largely hurt vape companies whose factories have have had to shut down as pressure against vape manufacturers persists.

 

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