April 16, 2019

Stanton A. Glantz, PhD

Class action lawsuit filed against Juul and Altria/Philip Morris builds on past litigation against Big Tobacco

Lauren Lempert and I read the complaint in the class action Juul lawsuit filed in Florida. We think this lawsuit, which echoes the state and federal lawsuits against the tobacco companies, is strong.  Because fraud and strict liability may be harder to prove, the complaint also includes negligence claims.  It also lays a nice groundwork for a claim under the Racketeer Influenced and Corrupt Organizations (RICO) Act claim, using similar arguments as the federal 2006 RICO case (described in Sharon Eubanks and my book Bad Acts), and in fact suggesting that Philip Morris/Altria/Juul deliberately used the same advertising and marketing techniques (but amped up with social media and newer advertising strategies than were not available in the earlier case) that were deemed to be RICO violations by Philip Morris and the other cigarette companies.

The fact that Juul studied how they could learn from the cigarette companies by researching how to design their product and market to kids using the UCSF Truth Tobacco Industry Documents Library was especially fun.

Because the document disclosure provis ions in Judge Kessler's 2006 RICO ruling against Philip Morris and the other cigarette companies requires that all documents produced in smoking and health litigation through 2021 be made public (so that we can load them into the UCSF Truth Tobacco Industry Documents Library) we should get some important insights into Juul and its partnership with Philip Morris/Altria.   Because the case may drag on past 2021, it is important that the Plaintiff's lawyers ensure that making the discovery documents public is part or any judgement or settlement.

The full complaint is only 38 pages long and worth reading; it is here.  A news story on the case is here.

Here is some background and observations on the issues raised in the case that Lauren prepared (with a little editing from me) followed by a summary of causes of action:

  • This is a class-action lawsuit, and the named plaintiffs are a 15-year-old girl in Florida who began using Juul when she was 14, and the girl's parents. In addition to getting addicted to Juul because she did not understand its nicotine and addictive potential, the girl had seizures from swallowing the e-liquid nicotine.
  • The defendants are Juul, Altria, and Philip Morris USA Inc.
  • The lawsuit begins by discussing the "e-cigarette epidemic," relying on FDA and CDC statements. 
  • In the factual allegations, the complaint describes how Juul’s design that deliberately creates and sustains nicotine addiction and cites research on how Juul uses benzoic acid to affect pH and nicotine absorption.
  • In an interesting twist, it says (at paragraph 25, p. 8) that Juul was designed to replicate the feel of traditional cigarettes, and "this design makes it easier for e-cig users to transition to conventional cigarettes because of the similarity."  The Juul/cigarette relationship is usually described the other way -- that because of the similarity, cigarette smokers will more easily transition to using Juuls, and thus it is good for "harm reduction."  By reframing it this way, the case likely reflects reality and kills (or at least puts a huge damper on) the "harm reduction" argument, since it more accurately describes "harm creation."
  • The complaint alleges that Juul fraudulently concealed safety information about how much nicotine Juul contains or delivers, and about how addictive its e-cigs are.  This is consistent with the fact that youth just don't know how much nicotine Juul contains or delivers, let alone understand its risk of addiction (and particular risks for youth). 
  • It states point blank that Juul has not been approved as a smoking therapy or approved as a MRTP, and failed to inform users that Juul has not been found to be safe and effective by FDA for smoking cessation. (paragraphs 38-39, page 11)
  • Starting at the bottom of page 11, section C, the complaint describes how Juul copied Big Tobacco's youth marketing playbook to addict youth to nicotine.  And Juul used the industry documents to study up on this and research how tobacco companies had chemically manipulated nicotine content to maximize delivery.  (See paragraphs 42-43, page 12.)
  • Juul also relied on Stanford Professor Robert Jackler's SRITA website to study traditional tobacco advertisements. (Paragraph 44, page 12.)
  • Starting at page 14, the complaint gives a little history lesson on the Philip Morris 2006 RICO case, and a description of Juul's advertising and marketing strategies, including social media, that target youth.

Causes of action:  

1. Violation of RICO

Because Juul entered into an agreement with Altria in December 2018 (described in pages 17-23), they constitute an "enterprise" that subjects them to RICO.  The complaint alleges that Juul and Altria unlawfully deceived consumers, particularly parents and children, by making material misrepresentations and omissions claiming that they did not market to children, while at the same time engaging in marketing and advertising intending to addict children into becoming lifetime nicotine users (similar to some of the arguments in the 2006  RICO case), and that they used mail, telephone, internet, interstate commerce, etc. to do this.

2.  Fraud

Juul and Altria fraudulently and deceptively sold Juul as non-addictive  or less addictive nicotine products than cigarettes, failed to disclose the highly addictive nature of nicotine salts, failed to disclose that Juul is designed to create and sustain nicotine addiction, and actively concealed the nicotine content and nicotine potency of Juul.

3.  Strict Product Liability -- Failure to Warn

Juul intentionally downplayed, misrepresented, concealed, and failed to warn about the heightened risks of nicotine exposure and addiction, including in advertising and social media communications and on the product label, and failed to warn that the product was not safe for minors and should not be used by them.  Instead, they marketed their products to minors in youth-friendly colors and flavors, and deliberately designed the products to be more palatable to youth and non-smokers by increasing Juul's inhale-ability and by making them more addictive.

4.  Strict Product Liability -- Design Defect

Juul was designed and intended to be used to ingest nicotine and other aerosolized constotuents, and the defendants knew or should have known that ordinary use was harmful or injurious, especially to youth and adolescents.  Juul was designed and marketed to appeal to nonsmokers, youth and adolescents.  Juul is inherently defective because they contain and deliver significantly more nicotine than Juul represents, and is unreasonably dangerous and defective in design because it is made to create and sustain addiction.  Defendants knew or should have known that youths and adolescents would not fully realize the dangerous and addictive nature of Juul and the long-term complications nicotine addiction can present, and that because of their youth, inexperience and/or immaturity of judgment, would recklessly disregard such risks.

5.  Negligence

Defendants did not use reasonable care to ensure that Juul marketing does not target minors, that Juul devices and pods are not sold or distributed to minors, that Juuls are not designed in a manner that makes them unduly attractive to minors or unreasonably dangerous, that Juuls will not addict youth or others to nicotine, and did not adequately warn of reasonably foreseeable adverse events. They knew that minors would be attracted to Juuls, and should have ensured that the products were not sold to minors, but instead induced minors to purchase Juuls.

6.  Unjust Enrichment

As a result of defendants' unlawful and deceptive actions described above, they were enriched at the expense of the plaintiffs and the classes of plaintiffs.

7.  Violation of Florida's Deceptive and Unfair Trade Practices Act

Florida's Act prohibits unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices, but, as described above, Defendants engaged in those practices, including: they knowingly developed, sold, ad promoted products that contained nicotine levels in excess of cigarettes with the intention of creating and fostering long-term addiction for minors to continue that addiction into adulthood; selling a product that aggravates nicotine addiction; creating advertising to target youth into using Juuls, and disseminating that advertising through unregulated social media platforms commonly used by youth.

Comments

Comment: 

One might also want to include the public nuisance created by the e-waste and plastic waste due to Juul use. These have been collected from schoolyards, public beaches, storm drains, and other areas where they are discarded as plastic, toxic, non-biodegradable trash. Legislation is now proposed in CA (SB424) that would prohibit the sale of single use plastics such as Juul pods without some sort of mandatory and funded take back program.

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