Attorney general Phil Weiser on Tuesday filed a lawsuit in Denver District Court on behalf of the state against e-cigarette company JUUL, claiming it targeting children and misleading advertising.
Among the assertions, the complaint says JUUL created the youth vaping “epidemic” in Colorado and the U.S. In July 2018, 27% of high school students in Colorado reported having vaped in the previous 30 days, according to the complaint, which the suit says was about double the national rate.
“Use of the word ‘epidemic’ is not an exaggeration,” states the complaint. “The National Institute for Drug Abuse, which funds the annual Monitoring the Future survey of youth substance abuse, reported that the one-year increase (2017–2018) in e-cigarette use amongst tenth and twelfth graders was the largest the organization has ever recorded for any substance it has tracked in the past forty-four years.”
According to a news release, the lawsuit is the result of an investigation Weiser’s office announced in August 2019.
The lawsuit alleges JUUL has used misleading marketing practices by framing e-cigarettes as products solely intended to wean users off traditional cigarettes and claiming they are safe and non-addictive. JUUL did not disclose its product contains nicotine for its first three years, states the complaint.
According to the complaint, JUUL also knew but did not disclose that two key ingredients, propylene glycol and glycerol, create health risks when heated and inhaled, and that they have not been approved for inhalation.
The complaint alleges the company targeted its products at children by developing a discreet design for its vaping device that is easy to conceal and selling sweet, fruity flavors. The lawsuit also details marketing campaigns and promotional events featuring people described in internal communications as “cool kids,” likely to influence other children to try the products.
“A review of JUUL’s marketing shows that, from the beginning, JUUL has been solely motivated by profit, and has indiscriminately marketed JUUL to anyone it believed would buy its dangerous product,” states the complaint.
JUUL did not return a request for comment on the lawsuit.
The lawsuit requests damages for mitigating the public nuisance it claims JUUL has created. It also requests orders finding JUUL in violation of the Colorado Consumer Protection Act and to stop the company from using deceptive trade practices claimed in the lawsuit.
Dr. Jonathan Samet, dean of the Colorado School of Public Health, said litigation against tobacco companies does have a role in public health because of its potential to reveal knowledge companies have had about their products’ harmfulness. He has testified against the tobacco industry in high-profile cases, including serving as a Department of Justice witness in the late 1990s for cigarettes’ health effects and cost estimations in the lawsuit brought by Minnesota and Blue Cross Blue Shield, which went to trial but eventually settled for several billion dollars.
“One of the key benefits was bringing the industry documents to light and providing the backdrop of, essentially, what we all knew but couldn’t prove – that in fact the industry was manipulating cigarettes in a way that misled the public,” he said.
The complaint against JUUL includes affidavits from students and staff at Horizon High School in Thornton about widespread use of vape products by students, saying the school’s “experience with JUUL is representative of the experience of schools across Colorado.”
According to the affidavits, students have tended to start vaping because they want to try it but don’t anticipate getting addicted, though according to affidavits from staff, hesitate to use the term “addiction” because they associate it with hard drugs and alcohol.
Also according to the documents, statements from Horizon staff say that even though the campus doesn’t allow tobacco, the policy is difficult to enforce because of the ease of concealing vape products.
“It seems like these companies walked a very fine line saying they’re not marketing to youth while, for example, having flavors, or opinion leaders … who are clearly able to reach the youth market,” Samet said.
Tom Russell, a professor at the University of Denver Sturm College of Law, said nuisance lawsuits have public appeal because they move beyond the framing of smoking as an individual choice and instead as a “social problem with social costs.”
Colorado’s lawsuit against JUUL is just one in a recent wave of litigation by local governments against e-cigarette companies for their marketing practices and seeking compensation for resources the governments say they have spent to mitigate damage to public health. In April, the City and County of Denver filed a lawsuit against e-cigarette companies in federal court.
The onslaught coincides with litigation against opioid companies claiming they have created the U.S. addiction crisis and used marketing practices that have misrepresented the addictiveness of their products. Samet said in a way the litigation against opioid companies and e-cigarette companies involve different regulatory contexts, though, because opioid manufacturers also used doctors to lend credibility to their products by pushing them to prescribe opioids for any kind of pain management.
One potential drawback of lawsuits of the type filed by the attorney general’s office is they can’t be relied on as drivers of systemic changes in company practices, especially since litigation tends to last for years. Russell said he believes JUUL, for example, has already reached its profit potential in the youth market and will probably end up paying some of it back through the various lawsuits against the company but has mostly moved on to other markets.
JUUL has already stopped selling its flavored pods in U.S. retail stores, and some states have passed legislation banning flavored vape products. (Colorado introduced a bill this year to ban flavored tobacco and nicotine products, but the measure was killed by layover once the legislative session resumed in May.) Russell said he believes litigation such as Colorado’s lawsuit is the “final chapter” in the phase of the companies’ sales and marketing practices at issue.
Samet said litigation against the tobacco industry such as the Minnesota case was intended to show companies’ role in the harm done by their products and the public resources spent mitigating it, rather than a means to legislation or even the multibillion-dollar settlement that ultimately resulted.
“At the time…the idea of a master settlement was nowhere in sight,” he said. “I don’t think anybody viewed the litigation as a step to something else.”