Key E-Cigarette Judicial Ruling Expected Shortly But It Would Not Affect Class Action Law Suits, Says Lawyer

ASH released this press release:

A key judicial ruling in a law suit involving e-cigarettes, and being watched very anxiously by both sellers and users, is expected shortly, says public interest law professor John Banzhaf, who has filed several legal briefs in the legal proceeding. However, even if the judge were to rule in favor of the e-cigarette sellers, it would not affect a class action law suit now pending against one manufacturer, and others which are likely to be filed shortly, predicts Banzhaf.

The law suit, brought by several e-cigarette sellers, seeks a preliminary injunction to restrict the power of the Food and Drug Administration [FDA] to inhibit the importation of e-cigarettes manufactured abroad.

The suit argues that the FDA had no jurisdiction over e-cigarettes, at the time of the import restrictions, because they (like cigarettes) were "tobacco products," even though e-cigarettes contain
no tobacco, and all other non-tobacco nicotine-administration products -- including gums, patches, inhalers, sprays, another type of imitation cigarette, and even nicotine water -- have all been subject to the FDA's jurisdiction.

But since the newly-enacted Family Smoking Prevention and Tobacco Control Act expanded the FDA's jurisdiction to also encompass all tobacco products (including cigarettes), a preliminary injunction based upon the law before the new act went into effect would probably provide no protection for e-cigarettes now, says Prof. Banzhaf, Executive Director of Action on Smoking and Health (ASH).

Moreover, any ruling related to the FDA's jurisdiction would have virtually no impact on a class action law suit now pending against a major e-cigarette seller, and others similar class action law suits likely to be filed shortly. The law suit contends that the defendant violated a consumer protection statute by engaging in "unlawful, unfair or fraudulent acts or practices" and engaged in "unfair, deceptive, untrue or misleading advertising."

Although the argument that the ads were unfair is based in part on scientific findings of the FDA, even a judicial ruling that the FDA at the time had no authority to regulate the product doesn't invalidate the agency's scientific findings about it, argues Banzhaf.

The FDA has reported that e-cigarettes contained detectable levels of known carcinogens and toxic chemicals to which users could potentially be exposed.

The FDA said the toxic chemicals included diethylene glycol, “an ingredient used in antifreeze, [which] is toxic to humans”; “certain tobacco-specific nitrosamines which are human carcinogens”; and that “tobacco-specific impurities suspected of being harmful to humans – anabasine, myosmine, and ?-nicotyrine – were detected in a majority of the samples tested.”

Banzhaf notes that virtually anyone who bought one or more e-cigarettes, based upon claims that they did not contain any of the cancer-causing chemicals found in tobacco cigarettes, would be able to bring a similar class action law suit in his state against the seller.

Virtually all states have consumer protection statutes which permit law suits to be brought even if the user suffered no medical harm from using the product.

The plaintiffs and the attorneys who are the first to file class action product liability law suits often end up with the lion's share of money recovered -- including attorney's fees -- so a race to the court house to be the first to file in each state is quite possible, says Prof. Banzhaf.

This is especially true since the legal complaint on file in the initial class action law suit provides a template which any other competent attorney could use to draft his own filing, Banzhaf suggests.

Perhaps that's one reason why more e-cigarette wholesalers are finding it necessary to provide product liability insurance to their retail customers, and at least one insurance company is offering its own liability policies.

That company explains the need for such insurance this way: "the FDA has issued a warning about the product (e-cigarettes) because marketers are presenting the e-cigarette as a healthier alternative to regular cigarettes. In addition, the cartridge contains several chemicals including nicotine that are hazardous to your health."

Also, ASH's legal notices about the potential liability of facilitating the sale of a product the FDA has determined is "illegal" have caused both PayPal and Amazon.com to disassociate their companies from these products.

E-cigarettes have already been banned in Australia, Brazil, Canada, Israel, Mexico, and virtually in Oregon, restricted in Finland, Malaysia, and Singapore, and threatened with legal action in Connecticut.

PROFESSOR JOHN F. BANZHAF III
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
America's First Antismoking Organization
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310 ** ash.org