E-cigarettes are everywhere. Sometimes they are out in plain view. Other times they are discreetly disguised as regular cigarettes, cigars, pipes, USB drives, pens, and other seemingly harmless items. They are easy, convenient, and, because they hold less than 3.4 ounces of liquid, even allowed through TSA security. Initially, e-cigarettes were regarded as the latest fad that would come and go when the next idea came along. Unfortunately, e-cigarettes are here to stay, and with e-cigarette usage continuing to rise, e-cigarette problems are quick to follow. One need only turn on the evening news to hear about hundreds of vaping-related illnesses and multiple deaths. Some cities and states have gone so far as to ban vaping-related products or flavored e-cigarettes.
For those unfamiliar with e-cigarette devices, they all basically function the same way. They consist of three parts — a tank or cartridge, a battery which heats the liquid nicotine and other chemicals (often called “juices”), and an atomizer, which converts the juice into vapor that the consumer inhales. These three-part systems pose multiple dangers. The FDA states that electronic nicotine delivery systems like e-cigarettes are noncombustible tobacco products. While the nicotine liquid itself is noncombustible, some batteries used in e-cigarette devices have proven to be quite combustible. E-cigarette batteries can explode, and when they do, it can be anytime or anywhere—in a pocket, a hand, or in a user’s month—often with devastating results. This problem, called thermal runaway, has become so prevalent that the FDA has issued tips for how to help avoid such explosions. These not-so-helpful tips include using a device with safety measures, keeping extra batteries in a case, never charging the device overnight or with a phone charger, and replacing the batteries if they get damaged or wet. If the battery does get damaged and the battery is not replaceable, the FDA recommends that the consumer contact the manufacturer. But who is the manufacturer? That question must be answered before e-cigarette litigation can begin.
Often e-cigarette batteries are rewrapped in new packaging and are imported from foreign manufacturers. In other words, consumers may think they are buying a battery made by one company by looking at the outer plastic wrapper, but the wrapper isn’t always reliable. Anyone can rewrap a battery, and there are even videos readily available online on how to do it. In order to answer the initial question of “who made this battery?”, plaintiffs’ attorneys will have to send the remains of the battery for laboratory scanning by a mechanical engineer. But that, too, can often pose a challenge. The explosions can sometimes leave little evidence to go on but a few charred pieces of plastic and metal.
Assuming the battery’s origins are established, other problems may also arise. Consumers often don’t save their receipts or have a record of where the exploding battery was purchased. When the retailer can be identified, the store may not have good insurance coverage or may no longer be in business. After all of the pre-suit hurdles, the real battle begins. E-cigarette litigation could really be called “personal jurisdiction litigation,” because foreign manufacturers increasingly make motions to dismiss on personal jurisdiction grounds. Getting discovery from foreign companies is challenging. Battery manufacturing is a highly competitive, highly lucrative business and manufacturers are not eager to disclose how their particular batteries are made.
In addition to the growing number of e-cigarette battery explosions, consumers are also facing a new threat from the vaping liquid used in the devices, called juice. While the exact cause of the mysterious lung disease is unknown, vaping juice is targeted toward young consumers. Juice can contain nicotine, tetrahydrocannabinol(THC), cannabinoid(CBD) oils, and other substances and additional ingredients, some of which may be harmful. Often innocuously described by cute names such as strawberry watermelon, blue slushie lemonade, and glazed donut, as of this writing e-cigarette juice is responsible for multiple deaths and hundreds of illnesses from an unknown vaping-related lung dis ease. Many of these victims are teens — exactly whom such flavored juices target. Under both legislative and public pressure, JUUL Labs, a manufacturer of e-cigarette devices, agreed to stop advertising in the United States and its CEO has stepped down. JUUL’s products resemble USB memory sticks and are wildly popular with adolescents. JUUL’s stated mission is to “improve the lives of the world’s one billion adult smokers by eliminating cigarettes.” JUUL also states that their products were designed with “adult smokers in mind.” According to one study, JUUL “dominates the American vapor market and has achieved a cult level of popularity among school aged adolescents.” It found that JUUL used youth-oriented events like concerts to give out free samples of their products. The study also discovered that JUUL’s primary focus was to get youthful influencers to accept the free products to make them popular for use among the influencers’ peers. Those tactics have apparently worked. E-cigarette usage among youth has surged. In 2018, 21%of 12th grade students reported having used an e-cigarette in the last 30 days.7That’s up from 11% in 2017.
Batteries will continue to explode, but now we must address the additional consumer threat of lung disease. Like e-cigarette battery litigation, ascertaining the origins of the e-cigarette juice from domestic retailers, foreign manufacturers, and unknown importers can be a daunting task. Establishing that e-cigarette juice manufacturers have minimum contacts with Washington may be challenging. Prepare in advance and research the law.
The FDA looks to remove flavored e-cigarettes and nicotine pods from the market, as flavors like blue slushie lemonade appeal to a younger demo graphic. Legislation is being considered to limit the sale of such flavored juice, especially to youth. Legislative changes and litigation surrounding such changes take time, and consumers are being injured every day, both by exploding batteries and by lung disease. For better or for worse, e-cigarettes are here to stay.
By Michelle Hyer and Heather M. Cover
Michelle Hyer and Heather M. Cover are both EAGLE members at the Law Offices of James S. Rogers. Michelle is a current member of the Trial News editorial board. Heather is the current cochair of the WSAJ Products Liability Section. They have both engaged in litigation relating to exploding e-cigarette batteries.
1 Vaporizers, E-Cigarettes, and other Electronic Nicotine Delivery Systems, U.S. Food and Drug Administration(September 12, 2019), https://www.fda.gov/tobacco-products/products-ingredients-components/vaporizers-e-cigarettes-and-other-electronic-nicotine-delivery-systems-ends.
2 Tips to Help Avoid “Vape” Battery Explosions, U.S. Food and Drug Administration (December 20, 2017), https://www.fda.gov/tobacco-products/products-ingredients-components/tips-help-avoid-vape-battery-explosions.
3 JUUL website, https://www.juul.com/mission-values(last visited October 24,2019).
4 JUUL website, https://www.juul.com/shop/devices (last visited October 24,2019).
5 Jackler, Robert K., et. al., “JUUL Advertising Over its First Three Years on the Market” Stanford Research into the Impact of Tobacco Advertising, Stanford University School of Medicine (January31, 2019), http://tobacco.stanford.edu/tobacco_main/publications/JUUL_Marketing_Stanford.pdf.
6 National Adolescent Drug Trends in2018, University of Michigan Institute for Social Research (December 17, 2018),https://isr.umich.edu/news-events/news-releases/national-adolescent-drug-trends-in-2018/.