A mere ten years since their introduction, the “electronic nicotine delivery systems” (ENDS) industry is expected to reach $3 billion by 2015.  As the market for these devices grows, however, so does the potential for tort litigation.  E-cigarettes, “vape pens,” and other ENDS use a heating device to atomize liquid nicotine as well as propylene glycol, glycerin, and flavors.  This allows the user, or “vaper,” to inhale nicotine without the combustion process found in traditional cigarettes. 

Health Effects

Because of their relative novelty, the long-term health impacts of ENDS are still unknown, although they are the subject of a number of ongoing studies.  Research suggests that ENDS may release some harmful substances, but at levels lower than traditional cigarettes.  While some research has shown that e-cigarettes may help smokers quit traditional cigarettes, opponents fear that ENDS encourage minors to use nicotine, leading to addiction.

Regulation

The FDA has proposed regulations such as requiring a listing of ingredients, barring the use of terms such as “light” or “low,” and prohibiting free samples, but these rules have yet to take effect.  While the FDA mulls regulation, various states and municipalities have enacted a patchwork of restrictions on ENDS, e.g., banning sales to minors or prohibiting “vaping” in public parks.

Litigation

While the regulatory landscape evolves and the scientific community explores their risks and benefits, ENDS have not escaped the attention of the plaintiffs’ bar.  Already, at least three putative class actions have been filed alleging that e-cigarette suppliers breached state consumer protection statutes by making false claims about the health of their products and their ingredients.

New Mass Tort?

Lawsuits related to the health effects of e-cigarettes have, so far, focused on state false advertising/deceptive practices statutes. But increasing e-cigarette use may soon generate “mass tort” personal injury litigation. Plaintiffs’ attorneys have already created web pages seeking to recruit potential claimants.

Takeaways

Potential product liability litigation may not be limited to problems caused by inhalation of ENDS vapor. Lawsuits may allege nicotine poisoning caused by the ingestion of, or contact with, the highly concentrated liquid nicotine contained in cartridges. Product liability claims may also stem from accessories such as chargers. The news media have reported claims that e-cigarette chargers have caused fires.  As the participants of the ENDS market (not only manufacturers, but also distributors, retailers, and suppliers of ingredients and accessories) prepare for the enactment of FDA regulations, they must also anticipate the potential for tort claims.