By Leah S. Poniatowski, J.D.
The second largest school district in the nation is seeking punitive and other damages for public nuisance, design defect, failure to warn, and negligence related to the company’s development of e-cigarettes.
The Los Angeles Unified School District has filed a multi-count class-action lawsuit against JUUL Labs, Inc., the nation’s leading e-cigarette manufacturer, for the negative impact that the vaping device has had on students and school administration amid the emerging teen vaping epidemic, "of which JUUL is the architect," the school district’s complaint asserted, demanding a jury trial (Los Angeles Unified School District v. JUUL Labs, Inc., October 29, 2019).
Youth vaping epidemic. According to data provided by federal agencies, tobacco use among middle- and high-school students had been on a significant decline following intentional efforts to educate and restrict access to tobacco products, dropping to 7.6 percent in 2017. However, following introduction of e-cigarettes and, specifically, the JUUL device, vaping products’ use by students increased 900 percent, and according to the Los Angeles County Department of Health, 30 percent of the over 600,000 students in the Los Angeles Unified School District (LAUSD) reported use of e-cigarette products, and 10 percent reported repeated use—an increase over the previous year.
The Commissioner of the U.S. Food and Drug Administration and the U.S. Surgeon General called the alarming rise in youth e-cigarette use an "epidemic." According to a press release issued by the attorneys representing LAUSD, student vaping incidence throughout Los Angeles Unified has increased tenfold since 2013, and during the 2018-19 academic year alone, there were approximately 435 critical incidents reported, which may dramatically underestimate the total incidence of vaping and e-cigarette use on campus because the data reflect only critical incidents reported by principals.
JUUL Lab’s evolution. According to the complaint, the founders of JUUL intended to create and market an improved cigarette, quoting one of the founders who stated that the cigarette was "the most successful consumer product of all time an amazing product." They developed a "heat-not-burn" e-cigarette device and partnered with Japan Tobacco International, one of the largest global tobacco companies, to access global distribution and capital and lab resources in 2011. Although the business relationship ended in 2015, the founders retained the open-system vaporizer and renamed their enterprise PAX Labs, Inc.
Following development of new products and entry into the lower-end e-cigarette market, the JUUL device hit the market in 2015. The company was renamed JUUL Labs, Inc., in 2017; the same year in which it took the lead among e-cigarette competitors. By 2018, JUUL represented more than 75 percent of the billion-dollar-plus national market for e-cigarettes and, as further evidence of its pervasiveness, the product name has transformed into a verb—"juuling"—and school bathrooms are referred to as "the Juul room."
Using prohibited "playbook". According to an interview with one of the founders, the company’s growth was attributable in part to having unlimited access to the Big Tobacco "playbook," an internal document archive made public through a settlement, which provided decades of information on marketing to youth and manipulation of nicotine pH, among other data. By law, tobacco companies cannot use the tactics and strategies for traditional cigarette marketing, but JUUL Labs had no such prohibition. According to the testimony of an otolaryngologist testifying before Congress in 2019, JUUL Labs’ marketing was "patently youth oriented," reflecting use of marketing techniques prohibited to cigarette manufacturers because of how effective the methods are in reaching the youth market.
LAUSD alleged that JUUL Labs’ advertisements are almost identical to cigarette ads, using vivid colors, youth-oriented themes and imagery, which are "unusual if one’s objective is to promote an adult-only smoking cessation device." Moreover, JUUL Labs relied on social media and platforms popular with teenagers for marketing, even employing an "affiliate program" for positive reviews and referrals for product discounts that operated effectively as concealed advertising.
LAUSD also contended that there was no mention of the nicotine content in the company’s promotional e-mails, and a study revealed that 63 percent of teenage users did not even know that the product contained nicotine. Notably, the nicotine content in a single JUUL pod is the equivalent to a pack of cigarettes, which is three times the limit allowed in the European Union and a multiple of competitors’ e-cigarettes in terms of concentration and delivery speed.
Additionally, JUUL Labs created unique flavors that are attractive to youth; a practice banned by the FDA in cigarettes. According to the complaint, the flavors not only increase appeal and attraction to using the device, they are in themselves harmful to the user. Further, the design of the device itself has strong appeal to adolescents, evoking other popular devices. It easily can be mistaken for a flash drive, increasing its ability to be concealed.
School district impact. LAUSD—the largest unified school district in the United States—stated that teenage usage of the device has had such a clear negative impact that it "is not an overstatement to say that JUUL has changed the educational experience of students across California." According to a national survey, almost half of middle schools and high schools have reported that they have an e-cigarette and a JUUL-specific policy, the enforcement of which is extremely difficult in light of the product’s physical design and addictive nature.
School resources are being diverted to combat JUUL use, often requiring use of camera and teacher bathroom surveillance, special monitor installation, and plumbing repair expenses for flushed paraphernalia. Some districts have had to hire tobacco-prevention supervisors, while others have developed anti-vaping curricula. Some schools even have removed the doors from their bathroom stalls.
Moreover, LAUSD alleged that JUUL Labs intentionally entered school campuses, paying schools and organizations "hundreds of thousands of dollars" for direct access to students as part of a marketed anti-smoking campaign. One incident reported by the Subcommittee on Economic and Consumer Policy alleged that a JUUL representative touted the product as being "totally safe" and demonstrated how to use it during a presentation where no parents or teachers were present.
In addition to the harm from a disrupted learning environment, student vaping has a negative impact on attendance and absenteeism. Adolescents use the term "nic sick," in which they suddenly suffer from flu-like symptoms, and studies have shown the correlation between school attendance and academic achievement. Further, student absences impact school funding, affecting the whole school body.
Design defect. LAUSD alleged a strict liability design defect cause of action against JUUL Labs, asserting that the vaping products are defective for lacking sufficient instructions or warning of potential safety hazards and have not been properly researched, inspected, or tested. LAUSD contends that the device is defective because it does not perform as safely as an ordinary customer would expect, and the "gravity of the harm resulting from [use of the] vaping products was, is, and will be enormous" because it has created an epidemic.
LAUSD contended that JUUL Labs knew that its vaping products would cause the type of harm suffered by the school district, and that safer alternative designs are feasible, cost effective, and advantageous. Further, JUUL Labs did not exercise any care in their conduct and, thus, has been grossly negligent for its extreme departure from not acting as a reasonably careful company would to prevent harm to others. Because the company engaged in despicable conduct and acted with malice, oppression and fraud, LAUSD asserted that punitive or exemplary damages are warranted.
Failure to warn. LAUSD maintained that JUUL Labs is strictly liable for failure to warn consumers of possible health affects either through warnings or instructions or through its advertising, and that the company failed to inform consumers that it failed to conduct adequate product testing vis-a-vis long-term use and effect on the lungs, brain, and cardiovascular system, as well as other medical conditions. LAUSD alleged that JUUL Labs failed to test its products before making them available to consumers or convey the lack of testing in the products’ advertising or, alternatively, that JUUL Labs conducted adequate testing but failed to warn of the products’ dangers in their advertising. LAUSD asserted that the failure to warn was intentional, willful, and malicious, and that the company acted with a conscious disregard for the rights and safety of others. This conduct was the proximate cause of substantial expenses incurred by the school district, LAUSD charged.
Negligence. LAUSD also asserted a negligence claims against JUUL Labs, asserting that the company had a duty to exercise due care and breached that duty as provided in its factual allegations and strict liability claims. The school district was harmed and continues to be harmed, and the harm was foreseeable, LAUSD claimed, adding that the company’s conduct was willful, knowing, and reckless, thus meriting punitive and exemplary damages.
Public nuisance. LAUSD alleged a claim of public nuisance, asserting that JUUL Labs created a condition harmful to human health, that also is indecent and offensive to the senses and obstructs the free use of property and resources, which interferes with the comfortable enjoyment thereof. JUUL Labs’ actions and omissions are alleged to be responsible for an unreasonable and substantial interference in the educational environment, affecting a substantial number of people at the same time, which would annoy and disturb a reasonable person, Moreover, the social utility of the vaping products does not outweigh the harm from their use. The school district did not consent to the company’s conduct and continues to suffer from the harm the products present. Further, JUUL Labs’ conduct was willful, knowing, and reckless to warrant punitive and exemplary damages.
Attorneys: Brian Panish (Panish Shea & Boyle LLP) and John Fiske (Baron & Budd, PC) for Los Angeles Unified School District.
Companies: Los Angeles Unified School District; JUUL Labs, Inc. f/k/a PAX Labs
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