JUUL Labs E-Cigarette Litigation
In re: JUUL Labs, Inc. Mktg., Sales Practices, & Prods. Liab. Litig.
United States District Court, Northern District of California
MDL No. 2913
Keller Rohrback L.L.P. represents multiple government entities that have spent resources addressing, or whose property has been affected by, the use of JUUL and other vapor products by the youth in Plaintiffs’ respective schools and counties.
Plaintiffs reasonably fear that Defendants’ marketing strategy, advertising, and product design targets minors, especially teenagers, and will increase the likelihood that minors, like those in Plaintiffs’ schools and counties, will begin using e-cigarettes and become addicted to Defendants’ e-cigarette products and this will cause further harm to Plaintiffs.
Plaintiffs allege that Defendants are responsible for the public health crisis of youth vaping and youth nicotine addiction. Defendants have erased years of public health progress—and the investment of public funds—in combating youth cigarette smoking. The harms caused by Defendants include, but are not limited to: (1) increased youth vaping rates; (2) increased youth nicotine addiction rates; and (3) school and county expenditures—both monetary and staff time—in implementing anti-vaping measures, developing and disseminating educational materials, identifying and supporting treatment options for youth nicotine addiction, providing resources and training to the community on issues surrounding youth vaping and youth nicotine addiction; and (4) reduced effectiveness of funding and other investments in initiatives and programs to decrease the rate of youth nicotine use.
The following entities are collectively referred to above as Defendants:
- JUUL Defendants: JUUL Labs, Inc. (formerly known as PAX Labs, Inc.); and PAX Labs, Inc.;
- Eonsmoke, LLC; and
- Altria Defendants: Altria Group, Inc.; Altria Client Services Inc.; Altria Group Distribution Company; Nu Mark LLC; and Nu Mark Innovations, Ltd.
Current Keller Rohrback Cases
Pretrial Order #1 – 10/02/2019
What is the Vaping Epidemic?
Background on Vaping Epidemic
- One of the great public health success stories over the past decade has been a reduction in youth tobacco use and in nicotine addiction. Youth smoking rates plummeted from 28% in 2000 to 7.6% in 2017. This success has been the result of years of litigation and strict regulation. It is also due to a public health message that Big Tobacco can no longer dispute or contradict, and which is simple, stark, and effective: smoking kills.
- This success has been largely reversed due to a large increase in youth use of e-cigarettes and vapor products. Between 2017 and 2018, e-cigarette use increased 78% among high school students nationwide, from 11.7% of high school students in 2017 to 20.8% of high schoolers in 2018. Among middle school students, e-cigarette use increased 48% between 2017 and 2018. The increase in youth nicotine vaping from 2017 to 2018 was the largest for any substance tracked by the national Monitoring the Future surveys over the past 44 years.
- Vape devices aerosolize a nicotine solution to allow users to inhale larger amounts of nicotine “vapor” without smoking a traditional cigarette. Vapor products are sold in a variety of youth-friendly flavors, such as Mango, Mint, Sour Gummy Worm, and Cotton Candy.
- There has recently been an outbreak of illnesses and deaths associated with vaping. As of December 10, 2019, the Centers for Disease Control and Prevention and state agencies had reported over 2,400 cases of hospitalization from lung injury and 52 deaths linked to vaping. More than three fourths of the patients who have become seriously ill are under 35, and more than 345 of the patients have been under 18.
- The Surgeon General has characterized e-cigarette use by youth as a public health epidemic.
- Plaintiffs allege that the youth vaping epidemic was created by deliberate practices of JUUL in developing a highly addictive product and intentionally marketing it to youth.
- JUUL Defendants transformed the e-cigarette market since it launched in 2015. The JUUL is a type of e-cigarette—an electronic nicotine delivery system that heats liquid containing nicotine, flavoring, and chemicals into an aerosol that is inhaled. Nicotine is addictive and can harm an adolescent’s developing brain. A recent study found that 63% of adolescent JUUL users did not know that JUULpods contain nicotine.
- As alleged in Plaintiffs’ complaints, JUUL studied the old marketing campaigns of Big Tobacco, materials that are now available to the public as a result of the Master Settlement Agreement entered into with Big Tobacco for marketing to youth themselves. JUUL also learned how to manipulate nicotine pH to maximize nicotine delivery in a vapor while minimizing the “throat hit” that may potentially deter new smokers.
- Plaintiffs allege that JUUL designed its product to appeal to youth, drawing on the experience of its co-founder Adam Bowen to make the product mimic technology that children were already familiar with. Dubbed the “iPhone of e-cigarettes,” JUUL’s device appeals to teenagers because of its sleek and sophisticated appearance and because it is small and easy to conceal.
- JUUL also marketed its products in flavors that are particularly appealing for kids and teenagers, and the JUULpods contain 59 mg per ml of nicotine—roughly three times the nicotine limit in Europe—while utilizing acids that reduce the harshness associated with smoking and other e-cigarettes. The end result is a nicotine delivery system that, according to Truth Initiative, doubles the concentration and nearly triples the delivery speed of nicotine compared to the average e-cigarette.
- JUUL’s rise in popularity has been meteoric. Over one million JUUL devices were sold between 2015 and 2017. By 2019, JUUL Labs controlled 70% of the market and last year had retail sales of $942.6 million in 2018.
- The Surgeon General, the Director of the Centers for Disease Control and Prevention (CDC), the former Food & Drug Administration (FDA) Commissioner, and the Secretary of the Department of Health & Human Services (HHS) all pointed to JUUL Labs as a primary cause of youth e-cigarette epidemic.
- Plaintiffs allege that Eonsmoke also capitalized on JUUL’s success in addicting youth, by manufacturing and marketing both vaping devices and nicotine pods that are compatible with JUUL products. Eonsmoke marketed its device as looking like a USB drive, including posting a photo of its device on Instagram with the caption, “Mom! It’s a USB drive!!” Eonsmoke also produced youth-friendly flavors, such as Blueberry, Sour Gummy Worms, Cotton Candy, and more.
- Altria, the parent company of Philip Morris USA and the company behind the Marlboro cigarette, initially tried to sell its own vapor products, branded as “MarkTen,” marketing them as containing more nicotine liquid than JUUL’s and in youth-friendly flavors such as Strawberry Brulee, Apple Cider, Piña Colada, Glacier Mint, and Mardi Gras.
- When the FDA started asking questions about Altria’s own marketing to youth, Altria pulled its products from the market, claiming to have “serious concerns” about youth access to e-vapor products and admitting that youth use of these products had risen to “epidemic levels.”
- Less than two months later, Altria changed its tune. On December 20, 2018, Altria announced that it would be making a $12.8 billion investment in JUUL, the biggest equity investment in United States history. The deal gave Altria a 35% stake in JUUL and gave JUUL access to Altria regulatory, lobbying, logistics, and distribution experience. For example, Joe Murillo, who headed regulatory affairs for Altria, is now JUUL’s chief regulatory officer, and K.C. Crosthwaite, a career Altria executive and former president and CEO of Phillip Morris USA now serves as JUUL’s CEO.
In the News
Evie Blad, ‘Juuling’ and Teenagers: 3 Things Principals and Teachers Need to Know, Educ. Wk. (July 18, 2018).
How Much Nicotine is In Juul?, Truth Initiative (Feb. 26, 2019)
Robert K. Jackler, The Role of the Company in the Juul Teen Epidemic, Testimony of Robert Jackler before the House Subcommittee on Economic and Consumer Policy (July 24, 2019).
Jon Hamilton, How Vaping Nicotine Can Affect A Teenage Brain, NPR (Oct. 10, 2019).
Chris Kirkham, Juul disregarded early evidence it was hooking teens, Reuters (Nov. 5, 2019).
Youth Tobacco Use: Results from the National Youth Tobacco Survey, FDA (Nov. 6, 2019).