Updated: Montgomery County To Sue Vaping Companies
Court case follows legislative action to curb e-cigarette use
An e-cigarette, or vape pen, in use.
Image via Flickr: Lindsay Fox (CC BY 2.0)
Montgomery County plans to sue manufacturers of electronic cigarettes, more commonly known as vape pens.
It’s the latest move in a countywide campaign to curb the spread of vaping, a trend that’s reportedly resulted in hundreds of cases of lung injury across the country. Many of those cases have involved minors or young adults, a demographic reportedly targeted by e-cigarette manufacturers.
County Executive Marc Elrich and Council President Nancy Navarro were scheduled on Monday to announce the lawsuit, but a press conference was canceled because a police officer was shot.
This month, the National Centers for Disease Control and Prevention announced it was investigating 1,299 cases of lung injury across 49 states, including 26 deaths associated with vaping products. At least one person in Montgomery County has been hospitalized with a vaping-related lung illness, according to a statement by county Health Officer Travis Gayles in a September press conference. The person was between the ages of 18 and 24.
Last school year, five Montgomery County students lost consciousness and required a drug antidote after vaping in school, Gayles added during the conference. Statewide, the Maryland Health Department is investigating 29 cases of severe lung illness linked to e-cigarette use.
The case will involve the company Juul, one of the predominant vaping manufacturers in the country. Juul has disputed the dangers of its products in previous lawsuits and denied efforts to market to teens, describing vape pens as an alternative for adults trying to quit smoking.
“We have never marketed to youth and do not want any non-nicotine users to try our products,” Juul said in a previous statement.
The county announced plans for legal action in a press release on Sunday afternoon, but gave few details on the case. Neither Elrich nor Navarro immediately responded to requests for more information.
On Tuesday, the County Council is scheduled to approve the appointment of a special counsel to investigate and prosecute claims against the manufacturers and distributors of electronic cigarettes, according to the meeting agenda.
The agenda item includes a memo from County Attorney Marc Hansen, who requests that the county confirm the appointment of Robbins Geller Rudman & Dowd, LLP — a national law firm with offices in nine cities, including Washington, D.C.
The same firm is representing the county in ongoing opioid litigation pending in U.S. District Court for the Northern District of Ohio.
If confirmed, the firm would investigate and prosecute claims against Juul Labs, which owns more than 75% of shares in the e-cigarette market, according to the law firm TorHoerman, which filed the first lawsuit against Juul in Illinois.
The investigation would also involve Altria Group, the parent company of cigarette and tobacco manufacturer Philip Morris USA, which owns 35% of Juul. Phillip Morris is best known for Marlboro cigarettes, one of its best-selling products.
“Robbins Geller believes that Juul … and Altria Group have violated Maryland and federal law by aggressively marketing their highly addictive Juul electronic cigarettes and flavored nicotine cartridges directly to minors as a trendy and safe alternative to traditional cigarettes,” Hansen wrote in the memo. “This has created a national problem of underage nicotine addiction that is negatively impacting schools and local governments around the country.”
Montgomery County would pay legal fees on a contingency basis, but Robbins Geller would be responsible for out-of-pocket costs in investigating and prosecuting e-cigarette-related claims, he added.
Local health officials report that vaping rates in Montgomery County align with national averages, which vary depending on the age of the user. Around 16.2% of high school seniors reported using e-cigarettes in the past month, according to data from the National Institute on Drug Abuse.
Montgomery County has been one of the most proactive jurisdictions in the country for deterring vaping. In 2015, it implemented the first-ever excise tax on e-cigarette dealers and distributors — an additional 30 percent on the wholesale cost of vaping products.
This year, council members introduced a zoning amendment that would ban the sale of e-cigarettes within half a mile of middle and high schools — legislation that would affect 19 of the 22 vape shops in Montgomery County, according to Council Member Gabe Albornoz.
He also proposed a new bill that would ban e-cigarette manufacturers from selling their product to any retailer within half a mile of middle or high schools. At least 600 retailers in the county sell vaping-related products, council members said.
Juul is facing several class-action lawsuits for its marketing, which experts say was deliberately designed to appeal to young adults. A January 2019 study from the Stanford University School of Medicine found that the company’s launch campaign featured models in their 20s who were “more evocative of underage teens than mature adults.”
The company also emphasized sweet and fruity flavors, especially mango, researchers found. In September, President Donald Trump’s administration announced plans to ban the sale of most flavored e-cigarettes.
Teens in several states, including Illinois and New Jersey, have pursued lawsuits against the company for promoting nicotine addiction or presenting vaping as a safe alternative to cigarettes. Less common are suits by individual states or jurisdictions, including the planned legal action by Montgomery County.
In May and August, North Carolina filed statewide lawsuits against eight e-cigarette companies, including Juul.