A leading seller of e-cigarettes has been hit with a major federal class action law suit, just as it finished warning a judge in another federal judicial proceeding that its “continued existence” was threatened by a growing number of legal actions, including at least one which the company blamed squarely on Action on Smoking and Health [ASH], the national antismoking organization which is leading the legal battle against the sale of this unapproved nicotine administration device.
E-cigarettes have already been banned in Australia, Brazil, Canada, Israel, Mexico, and virtually in Oregon, restricted in Finland, Malaysia, and Singapore, threatened with legal action in Connecticut, about to be banned in California, sued for violating state law by one attorney general, and abandoned by Facebook, PayPay, and Amazon.com after the companies received notices of potential legal liability from ASH, says public interest law professor John Banzhaf.
In announcements triggered by ASH, the Food and Drug Administration [FDA] has warned that the product is “illegal.” The agency also reported, in a separate statement triggered by ASH, that it found deadly toxins and cancer-causing chemicals in the product, and presumably in the vapor inhaled by users and bystanders.
The new class action law suit noted that the defendant claims its product has been “toxicologically tested and it contains no known ingredients that are considered cancer-causing agents.” However, the class action claims, the e-cigarettes have tested positive for human carcinogens, and that at least one cartridge was found to contain diethylene glycol, “a poison found in antifreeze that has been linked to hundreds of deaths worldwide from tainted toothpaste and cough syrup.”
This reference is to recent widely-publicized instances where both toothpastes and cough syrups made in China were found to contain deadly diethylene glycol. Most if not virtually all of the e-cigarettes sold in the U.S. are also made in China.
Indeed, the FDA has reported the toxic chemicals found in samples of e-cigarettes it tested included diethylene glycol, “an ingredient used in antifreeze, [which] is toxic to humans”; “certain tobacco-specific nitrosamines which are human carcinogens”; and that “tobacco-specific impurities suspected of being harmful to humans – anabasine, myosmine, and ?-nicotyrine – were detected in a majority of the samples tested.”
The new class action law suit seeks monetary damages for unfair competition and unjust enrichment, and also a court order requiring the company to correct its advertising. Law professor Banzhaf suggests that more civil law suits are likely to be filed in the near future, and that sellers of drug-delivery devices which are not approved by the FDA could also face potential criminal sanctions, even if they make no claims for their product.
Virtually all other nicotine-delivery products — including nicotine gum, nicotine patches, nicotine sprays, nicotine inhalers, nicotine lollipops, nicotine water, and another nicotine-delivery device which also looks like a cigarette called “Favor” — are regulated by the FDA, which typically requires warnings, limits sales to adults, and imposes other restrictions designed to protect public health. E-cigarettes are not regulated, typically contain no warnings, may be sold to children, and, indeed, often come in a variety of flavors which many believe make them enticing to young children.
“Persons who need or desire to ingest nicotine by inhaling on a cigarette-like device may use nicotine inhalers, many of which strongly resemble cigarettes. E-cigarette may one day join them as still another drug administration device approved by the FDA if they can be shown to be safe and effective — presumably with suitable health warnings, restrictions on sales to children, and other appropriate safeguards to protect the public,” says Prof. Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law, GWU, and
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
America’s First Antismoking Organization
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310 ** http://ash.org