Class action over e-liquid continues tradition of litigation over cigarettes

By Vimbai Chikomo | Dec 23, 2015

SANTA ANA, Calif. (Legal Newsline) - A class action lawsuit filed by an Orange County woman claiming that the manufacturers of liquid nicotine for electric cigarettes misrepresented their products is reminiscent of lawsuits that the tobacco industry has faced over the past half-century, a class action expert says.

The tobacco industry has been fighting lawsuits since reports linking cigarettes to cancer emerged in the 1950s. Now that electronic cigarettes have been hailed as a safer alternative to traditional cigarettes by some reports, new testing and a recent case study revealed that the chemicals in flavored e-liquids may pose health risks.

“There were similar suits against tobacco cigarettes over a good many years,” said Geoffrey Hazard, class action law expert and Emeritus Professor of Law at University of Pennsylvania.

“And they had a very strong effect in the eventual reduction in the use of tobacco in cigarettes.”

On Nov. 23, Jennifer Cox filed a class action lawsuit in U.S. District Court for the Central District of California, Southern Division on behalf of herself and others similarly situated, and named Cuttwood, Molecule Labs, Jared Unger, Michael Guasch, Art Chambers, William Ruiz and others as defendants, alleging they violated several California consumer protection laws by not disclosing that their e-liquids contained harmful toxins.

“Maybe the toxicology may be similar but that remains to be seen. So it seems to perhaps be a plausible claim, but of course, it still awaits proof,” Hazard said.

According to the claim, the defendants manufacture, distribute and sell Cuttwood e-liquids for e-cigarettes.

E-liquids allegedly contain the potentially hazardous substances diacetyl (DA) and acetyl propionyl (AP). They are only hazardous when inhaled, but are safe to eat and drink.

The complaint states that the inhalation of these substances has been linked to some serious lung conditions, including Bronchiolitis Obliterans -- a condition characterized by irreversible scarring to the lungs.

The nickname for Bronchiolitis Obliterans is “popcorn lung” disease since the condition was first noted in 2000, among factory workers in facilities that manufacture microwave popcorn who were exposed to high levels of DA – which is used to produce artificial buttery flavoring.

The class action seeks to prove that certain flavors of e-liquid manufactured by the defendants have the highest concentrations of DA and AP seen in any liquid nicotine product on the market, and alleges that “defendants do not warn its customers about the dangers of inhaling DA and AP, neither on its product packaging nor on its website. Instead, Defendants' marketing campaign describes its e-liquids as if it were selling wine."

Cox claimed that the defendants used a variety of methods to deceive and mislead consumers - including misleading packaging and advertising, product inserts, email and internet forum communications and information on Cuttwood’s website.

Hazard stated that there may be some similarities between lawsuits brought against the tobacco industry and this particular lawsuit, but the outcome of this case could go either way.

“Electronic cigarettes may present the same kind of problem but it’s obviously a different product. So the conclusions, settlements and judgments in the tobacco cases do not necessarily determine this case,” Hazard said.

A 2014 survey conducted by the University of California, San Diego School of Medicine found that between 2012 and 2014, 10 new e-cigarette brands entered the Internet marketplace on average every month. Researchers also discovered that there were 466 e-cigarette brands available online at the time that offered more than 7,700 flavors.

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