Products Liability Law Daily Product liability claims against e-cigarette maker move forward
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Monday, August 26, 2019

Product liability claims against e-cigarette maker move forward

Jeffrey H. Brochin, J.D.

Smokers plausibly alleged that JUUL’s products are more addictive than necessary and that the company failed to warn users that its nicotine formulation was stronger than the amount listed on the label.

A federal district court in California has denied a motion by JUUL Labs, Inc. to dismiss design and manufacturing defect claims filed by electronic cigarette users who sufficiently alleged that JUUL’s products were more addictive than necessary to provide an alternative to combustible cigarettes and that the risk of higher levels of addiction did not outweigh the benefits of a nicotine formulation that the body absorbs at twice the rate of a pack of combustible cigarettes with the same amount of nicotine. In addition, the users adequately alleged that JUUL failed to meet its duty to warn that its nicotine formulation was stronger than the 5-percent nicotine listed on the label and that the product contained more nicotine than a pack of cigarettes (Colgate v. JUUL Labs, Inc., August 23, 2019, Orrick, W.).

ENDS system. JUUL produces an electronic nicotine delivery system (ENDS) consisting of an electronic cigarette and a nicotine cartridge called a JUULpod. In a Consolidated Class Action Complaint filed by JUULpod users, it was alleged that JUUL used research from the tobacco industry to target youth and design a product that delivers more nicotine and that is more addictive than combustible cigarettes. The JUULpods use a nicotine salt formula derived from a leading tobacco company that enhances the amount and speed of nicotine delivery.

Four times faster nicotine delivery. JUUL’s formulation was found to be more addictive and dangerous than a normal cigarette because it delivers more nicotine up to four times faster than a combustible cigarette, and the formula makes ENDS easier to use. The JUUL system causes less throat irritation or "throat hit," which is the body’s natural feedback mechanism for inhaling harmful substances. The complaint alleged that JUUL’s formulation makes it easier for non-smokers to use JUUL’s products without negative side effects like coughing and irritation, something that would be crucial to appealing to non-smokers, and generally enabling of compulsive use.

Motion to dismiss product liability claims. JUUL moved to dismiss the product liability claims on four grounds: First, it argued that those claims were preempted to the extent they sought additional warnings on the risks of consuming nicotine or the pharmacokinetic properties of JUUL ENDS; second, the users only pleaded the elements of California product liability claims, and California law did not apply to non-California plaintiffs; third, the failure to warn and negligent marketing claims should fail because JUUL had no duty to provide additional warnings and the users did not allege proximate cause; and fourth, the design and manufacturing defect claims did not allege a cognizable defect or proximate cause.

The court noted that it had previously rejected JUUL’s claims related to preemption because the Tobacco Control Act (TCA) expressly did not preempt claims under state product liability law. The court then turned to the remaining arguments.

Failure to warn claims. The court recited the elements for proving product liability claims under California law, including proving that a lack of sufficient warnings was a substantial factor in causing the alleged harm. JUUL had a duty to use reasonable care to give warning of the dangerous condition of its product or of facts which made it likely to be dangerous to those expected to use the product or be endangered by its probable use, if it had reason to believe that the users would not realize its dangerous condition. However, JUUL was under no duty to warn against obvious or generally known or recognized dangers.

JUUL contended that it had no duty to provide warnings beyond those already required by the Food and Drug Administration and California’s Prop 65 because of the obvious risks involved with the use of its ENDS and because of the well-known risks of nicotine. Furthermore, it argued that it did warn that its products contained nicotine and about the risks inherent in the use of its ENDS.

The court found that the users adequately alleged that JUUL had a duty to warn that its nicotine formulation was stronger than the 5-percent nicotine listed on the label and that a JUULpod contained more nicotine than a pack of cigarettes. The complaint adequately alleged that JUUL failed to meet this duty in its advertising, social media communications, and on its product label. Regarding JUUL’s advertisements, the court found that the users sufficiently alleged that JUUL failed to inform its customers about the risks created by the pharmacokinetics of its liquid nicotine formulation; specifically, that users would absorb up to twice as much nicotine than they would from combustible cigarettes with the same amount of nicotine. Furthermore, although the risks of nicotine in general may be known to the community, the risks of JUUL’s formulation were not. Although there was an attempt to distinguish what adults and adolescents in the community knew, the court noted that e-cigarettes are a new technology and do not fall under California’s obvious danger rule. For the foregoing reasons, JUUL’s motion to dismiss the claims for failure to warn and omission in advertising was denied.

Design and manufacturing defect claims. The users also plausibly stated a claim for manufacturing and design defect. They sufficiently alleged that JUUL’s products were more addictive than necessary to provide an alternative to combustible cigarettes and that the risk of higher levels of addiction do not outweigh the benefits of a nicotine formulation that the body absorbs at twice the rate of a pack of combustible cigarettes with the same amount of nicotine. Therefore, JUUL’s motion to dismiss the manufacturing and design defect claims was denied.

Other claims. The court also denied JUUL’s motion to dismiss the false advertising, deceptive trade practices, fraud, and negligent misrepresentation claims related to JUUL’s pharmacokinetics.

The case is No. 18-cv-02499-WHO.

Attorneys: Adam Gutride (Gutride Safier LLP) for Bradley Colgate. Austin Van Schwing (Gibson, Dunn & Crutcher LLP) for JUUL Labs, Inc.

Companies: JUUL Labs, Inc.

MainStory: TopStory WarningsNews TobaccoProductsNews PreemptionNews ElectronicProductsNews DesignManufacturingNews CaliforniaNews

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