The Future of E-Cigarette Litigation: Is There One?

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I. Introduction

While e-cigarette smoking, or vaping, as an alternative to smoking traditional cigarettes is generally regarded as a healthier option, some claim that the long-term effects of vaping are unknown and that inevitably researchers (and habitual vapers) will learn that e-cigarettes have their own risks and hazards. Plaintiffs’ attorneys seem to see tort litigation over e-cigarettes as a “when” and not an “if”. Thus far, the lawsuits against e-cigarette manufacturers have primarily been filed by governments and center on consumer fraud allegations and the manufacturer’s advertising techniques, particularly alleging that young people are the targets of the advertising. Other lawsuits have revolved around specific defective products, as some e-cigarettes catch fire or explode due to a malfunctioning battery, or inadequate safety controls or warnings, as children are poisoned from accidentally ingesting e-liquids.[1] What the lawsuits have yet to allege is that e-cigarette smoking caused a specific plaintiff to develop an illness, and certainly e-cigarette litigation has not yet developed into the latest mass tort. This article will review the various risks that are being evaluated with respect to e-cigarette smoking and whether the science is moving in a direction where e-cigarette mass tort litigation is inevitable.

II. How an E-Cigarette Works

E-cigarettes, also referred to as e-vaporizers or electronic nicotine delivery systems, are battery-operated devices that utilize an atomizer to heat and aerosolize e-liquids contained in cartridges or pods.[2] E-cigarettes were originally designed to resemble traditional cigarettes and are marketed as a safer alternative. By aerosolizing e-liquids, e-cigarette manufacturers have found a way to completely bypass the combustion process—thereby retaining and delivering more nicotine to its users. Juul, the most predominant e-cigarette manufacturer on the market, has gone a step further and has patented a formula comprised of nicotine and benzoic acid, which reduces the harshness once associated with inhaling nicotine.[3] In addition, technology has continued to rapidly develop and has drastically transformed the appearance of e-cigarettes to resemble pens or USB flash drives and has enhanced the ability of e-cigarettes to deliver higher concentrations of nicotine to the user by heating e-liquids at a higher temperature.[4]

III. What Chemicals Are Involved

Regardless of its form, all e-cigarettes have a cartridge that holds the e-liquid, which is composed of nicotine, flavorings, humectants, chemicals, and other compounds.[5] Some of the advertising and research to date focus on how e-cigarettes are a safer alternative than traditional cigarettes, as e-cigarettes provide the nicotine that users want while forgoing some of the cancer causing components found in traditional cigarettes—tobacco, tar, oxidant gases, and carbon monoxide.[6] However, critics of the safety of e-cigarettes point out that: 1) many of the same carcinogenic compounds found in traditional cigarettes, such as tobacco-specific nitrosamines (nitrosonornicotine), carbonyl compounds (formaldehyde, acetaldehyde, acrolein), metals (arsenic, cadmium, chromium, lead, nickel), volatile organic compounds (benzene), and phenolic compounds (phenol), are still present in e-cigarettes, albeit in lesser amounts; and 2) while e-cigarette manufacturers have removed tobacco smoke from the equation, they have replaced it with vapors composed of flavorings (diacetyl, acetyl propionyl), humectants (propylene glycol, glycerol, and ethylene glycol), and other chemicals (vitamin e acetate).[7] With over 7,000 flavors available to e-cigarettes users and numerous manufacturers of e-liquids, the combinations of chemicals and flavorings are endless, which arguably makes it difficult to assess the potential risks and long-term effects associated with smoking e-cigarettes.[8] Moreover, there is little research on the health consequences of repeated exposures to the various chemicals at the levels found in, or produced from, e-cigarettes.

IV. What Are Potential Risks Associated With Those Chemicals?/ Proposed And Ongoing Research.

Nicotine is a long-known addictive drug that stimulates the adrenal glands to release epinephrine and the brain to release dopamine.[9] Nicotine exposure affects the heart rate, increases blood pressure, and may also lead to type 2 diabetes.[10] Nicotine further affects the way synapses are formed, thereby affecting prefrontal brain development, potentially leading to attention deficit disorders, psychiatric disorders, and poor impulse control.[11] Researchers express concerns about nicotine exposure in adolescents, as the prefrontal cortex of the brain is one of the last areas to develop, and as adolescent brains continue to form until age twenty-five.[12] A 2018 study reported that in the year prior, United States high school students’ use of e-cigarettes had increased by 78%, and middle school students’ use had increased by 48%.[13] The American Psychological Association has stated that nicotine-dependent individuals are up to eight times more likely to develop psychotic disorders, depressive disorders, anxiety, and delirium.[14]

Nicotine also stimulates nicotinic acetylcholine receptors in the lung and other tissues, which can create properties consistent with the early stages of cancer.[15] Further, some research concludes that nicotine allows the survival of damaged cells; forms arachidonic acid metabolites which increases cell division; and works synergistically with other carcinogens to shorten the induction period of cancers.[16]

In sufficient doses, other chemicals found in both cigarettes and e-cigarettes are potentially hazardous to one’s health. For example, nitrosonornicotine and benzene are both classified as known carcinogens.[17] Benzene is found in the air from emissions from burning coal, oil, and from motor vehicle exhaust. Long-term occupational exposure to benzene can reduce the number of red blood cells, affect fetus development, and increase the incidence of leukemia.[18] Furthermore, metals such as arsenic and chromium are known human carcinogens linked to lung cancer, and cadmium, lead, and nickel have been classified as probable human carcinogens with similar adverse effects on the lungs, kidneys, and brains of occupational workers exposed to these various metals.[19]

E-liquids not only include the potential carcinogens listed above but also have added chemicals such as flavorings including diacetyl (DA) and acetyl propionyl (AP); humectants including vitamin E acetate, propylene glycol and glycerol; and carbonyls including formaldehyde, acetaldehyde, and acrolein. The potential risks associated with these chemicals are not well-known, as most of these chemicals have not been studied when aerosolized and inhaled.

Instead, some of these chemicals, including propylene glycol and flavorings such as DA and AP, have been classified safe to consume by the Food and Drug Administration.[20] However, some occupational workers who inhaled large amounts of DA developed a rare respiratory disease known as bronchiolitis obliterans (also commonly known as popcorn lung).[21] While DA has been largely replaced by AP, studies have shown that acute inhalation exposure to AP may cause airway epithelial damage similar to DA.[22]

Similarly, inhaling propylene glycol may irritate the throat and airways and has been found to increase the risk of developing asthma in children. Heating propylene glycol or glycerol at high temperatures also presents potential risks when these humectants decompose and form possible carcinogens, such as propylene oxide.[23]

Additional issues arise as the newer generation of e-cigarettes are capable of heating e-liquids at higher temperatures.[24] Although high temperatures are desirable, as the user receives higher levels of nicotine, overheating of e-liquids may lead to increased levels of carbonyls, such as formaldehyde, acetaldehyde, and acrolein.[25] Studies have reported higher concentrations of formaldehyde than conventional cigarettes in high voltage e-cigarettes. Formaldehyde is a chemical commonly used in many household products and has been classified as a known human carcinogen.[26] Occupational exposure to formaldehyde has been associated with cancers, such as nasopharyngeal cancer and leukemia. Acrolein in cigarette smoke has been linked with several pulmonary diseases, increased risk of lung cancer, and asthma.[27] One study has even linked acrolein exposure to the risk of cardiovascular disease. This creates potential concerns as battery capacities and heating mechanisms for e-cigarettes develop and users are exposed to higher concentrations of carcinogenic carbonyls.[28]

Further research and investigation are necessary to understand the potential health effects of inhaling and aerosolizing the different constituents of the e-liquids, including flavorings, humectants, and solvents. While some of the chemicals at play have been recognized as safe for use in foods, they have not been extensively tested to demonstrate their toxic characteristics or the concentration required for toxicity when aerosolized and inhaled.[29] For example, there have been several lung related illnesses linked potentially to the vaping of Vitamin E acetate, an oil derived from Vitamin E. Vitamin E is not believed to be hazardous when ingested or topically applied, but some recent and ongoing research suggests that it may be toxic when aerosolized and inhaled.[30] Lipids, oils and other chemicals that remain in the lung can lead to acute respiratory distress syndrome (ARDS) or wet lung.[31] If untreated, ARDS can lead to infections, various types of pneumonia, collapsed lung, and death in 30 to 40 percent of cases.[32] Other metals that are broken down to ultrafine particles can also penetrate the blood-brain barrier, leading to neuroinflammation, neurotoxicity, seizures, or convulsions.[33] More time and research is needed to truly understand the long terms consequences that adolescents, adults, prior smokers, and non-smokers, alike, face as a result of vaping.

V. What are Some of the Hypothesized Injuries?

The biggest unanswered question, of course, is whether long-term vaping can cause cancer. As the vaping phenomenon is relatively recent and its users are more concentrated in the younger population, it may be years before the carcinogenic potential of long-term vaping is understood. The e-cigarette manufacturers maintain that vaping is safe from a cancer-causing standpoint because the concentrations of potential carcinogens are small. Wary researchers point out that the delivery system with e-cigarettes, the high heating temperatures involved, and the sheer number of unique carcinogens potentially at play make it impossible to compare the potential effects of e-cigarette smoking to that of traditional cigarettes and, thus, impossible to affirmatively claim that e-cigarette smoking is a long-term safer alternative. 

But even if e-cigarette smoking ultimately does not cause cancer, e-cigarette manufacturers may not be able to escape the inevitability of mass tort litigation. Researchers appear more and more convinced that even short-term e-cigarette smoking can cause lung inflammation, respiratory failure, cardiovascular disease, seizures, depression and mood swings related to nicotine withdrawal. Any of these conditions alone could serve as a basis for lawsuits against e-cigarette manufacturers. There have already been anecdotal reports of cases involving teens and young adults who were hospitalized with lung conditions believed to be linked to vaping, though many or all of those cases may have involved vaping street market THC products rather than publicly marketed e-cigarette products. 

A 2019 Healthline article reported that eleven teens and young adults in Wisconsin and three in Illinois were hospitalized for “lung damage potentially linked to vaping.” The patients were reported to have experienced shortness of breath, chest pain, fatigue, and to have required mechanical ventilation to breathe in some instances. The report concedes that it is unclear if the hospitalized individuals smoked e-cigarettes that contained legal or illegal substances. Dr. Michael Steinberg, quoted in the article, states that, “even with the short period of time that [e-cigarettes have] been out…there’s evidence to date that those chemicals can cause inflammatory effects on the lungs.” The article further references a 2017 study at the University of Michigan that looked at 11th and 12th graders who used e-cigarettes and found that they were twice as likely to experience chronic cough, phlegm, and bronchitis. A more recent study by University of North Carolina researchers found that chronic vaping increases proteolysis in the lung, which puts vapers at risk of developing chronic lung disease. One of the researches involved in that study concluded, “If [vapers] keep using these products for about 20 years, it is likely that they will get emphysema.”[34]

Of course, the fact that teens and young adults are often e-cigarette consumers presents unique issues both from a public health and litigation perspective.  If the health consequences of e-cigarette smoking require a long latency to develop, we may be more likely to see these consequences considering that many e-cigarette users start at a young age. Further, the fact that young e-cigarette users often do not smoke or have never smoked traditional cigarettes eliminates one potentially confounding variable in determining the etiology of any health effects that might later develop. And of course, from a litigation perspective, young potential plaintiffs are attractive clients to plaintiffs’ attorneys, as the damages claims and potential for large jury verdicts can be substantially higher. 

VI. Conclusions on Inevitability of Litigation

The media frenzy around vaping seems to have abated for the time being, but e-cigarette litigation is still active. The future of the litigation likely depends on the success of the pending lawsuits and what the ongoing medical research ultimately demonstrates.[35] If e-cigarette usage proves to be hazardous over time with individuals developing demonstrable health conditions after a sufficient dose and latency period, then e-cigarette litigation very well may be the next major mass tort, with the potential to expand and endure much like asbestos litigation did. And, just as asbestos litigation expanded over time beyond just raw asbestos and insulation manufacturer defendants, e-cigarette litigation very well might expand beyond just the device manufacturers to the component part manufacturers, distributors, and suppliers of the e-cigarette products.

Cameron D. Turner is a shareholder in the Chicago and Fort Lauderdale offices of Segal McCambridge Singer & Mahoney. He concentrates his practice in mass tort, products liability, personal injury defense and commercial litigation matters. He is licensed to practice in Illinois, Florida, Missouri, Wisconsin and the Northern District of Illinois. 

Jonathan J. Lee is an associate in the Chicago office of Segal McCambridge Singer & Mahoney. He concentrates his practice in mass tort, products liability, and personal injury defense matters. He is licensed to practice in Illinois and the Northern District of Illinois. 

[1] Nancy Rigotti & Sara Kalkhoran, E-Cigarettes, UpToDate, https://www.uptodate.com/contents/vaping-and-e-cigarettes?search=e-cigarettes&source=search_result&selectedTitle=1~52&usage_type=default&display_rank=1 (last updated Aug. 29, 2019). See also, Terry Turner, E-Cigarette Lawsuits, Drugwatch, https://www.drugwatch.com/e-cigarettes/lawsuits/ (last accessed Sept. 9, 2019); Office of the U.S. Surgeon General, E-Cigarette Use Among Youth and Young Adults: A Report of the Surgeon General, 2016, U.S. Dep’t of Health and Human Servs., https://www.cdc.gov/tobacco/data_statistics/sgr/e-cigarettes/pdfs/2016_sgr_entire_report_508.pdf.

[2] Rigotti, supra note 1. See also NIDA, Electronic Cigarettes (E-cigarettes), Nat’l Inst. on Drug Abuse, https://www.drugabuse.gov/publications/drugfacts/electronic-cigarettes-e-cigarettes (last revised June 6, 2018).

[3] What is in JUULpod e-liquid?, Juul, https://support.juul.com/hc/en-us/articles/360023364794-What-is-in-JUULpod-e-liquid- (last visited Oct. 20, 2019); see also Anne Sraders, What is Juul and Is It Bad for You?, TheStreet, https://www.thestreet.com/lifestyle/health/what-is-juul-14732885 (last updated September 9, 2019) (noting that Juul maintains over 70% of the market share).

[4] Rigotti, supra note 1. See also Surgeon General’s Report, supra note 1.

[5] Rigotti, supra note 1.

[6] Is Vaping Better Than Smoking?, Am. Heart Assoc., https://www.heart.org/en/healthy-living/healthy-lifestyle/quit-smoking-tobacco/is-vaping-safer-than-smoking (last reviewed Oct. 30, 2018). See also My Hua & Prue Talbot, Potential health effects of electronic cigarettes: A systematic review of case reports, 4 Preventative Med. Reports 169-178, June 10, 2016, available at https://www.sciencedirect.com/science/article/pii/S2211335516300523#!. 

[7] Know the Risks of E-Cigarettes for Young People, https://e-cigarettes.surgeongeneral.gov/ (last visited Sept. 9, 2019). See also Suchitra Chaudhary, E-cigarette plans in UAE: How Bad is it going to be, Gulf News Health, May 24, 2019, https://gulfnews.com/uae/health/e-cigarette-plans-in-uae-how-bad-is-it-going-to-be-1.64072169; NIDA, supra note 2; NIOSH, Flavorings-Related Lung Disease, Nat’l Inst. For Occupational Safety and Health, https://www.cdc.gov/niosh/topics/flavorings/exposure.html (last reviewed Oct. 3, 2017).

[8] Rigotti, supra note 1. See also Surgeon General’s Report, supra note 1; What’s In a Cigarette?, Am. Lung Assoc., https://www.lung.org/stop-smoking/smoking-facts/e-cigarettes-and-lung-health.htmlhttps://www.lung.org/stop-smoking/smoking-facts/whats-in-a-cigarette.html (last accessed Sept. 9, 2019); Vaping and Pneumonia, Univ. of Utah, July 22, 2019, https://healthcare.utah.edu/healthfeed/postings/2019/07/vaping-pneumonia.php (last accessed Sept. 9. 2019).

[9] NIDA, supra note 2.

[10] John Ross, E-Cigarettes: Good News, Bad News, July 25, 2016, https://www.health.harvard.edu/blog/electronic-cigarettes-good-news-bad-news-2016072510010.

[11] Surgeon General’s Report supra note 1. See also Know the Risks, supra note 7.

[12] Prefrontal Cortex, GoodTherapy, https://www.goodtherapy.org/blog/psychpedia/prefrontal-cortex (last updated Sept. 4, 2019).

[13] Karen Cullen, et al., Notes from the Field: Use of Electronic Cigarettes and Any Tobacco Product Among Middle and High School Students—United States, 2011-2018, 67 Morbidity and Mortality Weekly Report 1276, Nov 16. 2018, https://www.cdc.gov/mmwr/volumes/67/wr/mm6745a5.htm (last accessed Oct. 18, 2019).

[14] Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association (5th ed. Arlington, 2013).

[15] Aseem Mishra, et al., Harmful Effects of Nicotine, 36 Indian J. Med. Paediatr. Oncol.., 1, pp. 24-31, Jan.-Mar. 2015, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4363846/.

[16] Mishra, supra note 15.

[17] GASP, Harmful Chemicals in Electronic Cigarettes, Group to Alleviate Smoking Pollution, http://www.gaspforair.org/gasp/gedc/pdf/E-CigSmoke.pdf (last accessed Sept. 9, 2019).

[18] GASP, supra note 17.

[19] GASP, supra note 17.

[20] Noel Leigh, et al., Flavourings significantly affect inhalation toxicity of aerosol generated from electronic nicotine delivery systems (ENDS), 25 BMJ Journals 81-87, Sept. 15, 2016, available at https://tobaccocontrol.bmj.com/content/25/Suppl_2/ii81. See also OSHA, Occupational Exposure to Flavoring Substances: Health Effects and Hazard Control, U.S. Dep’t of Labor, Oct. 14, 2010, https://www.osha.gov/dts/shib/shib10142010.html (last accessed Sept. 9, 2019); Consensus Study Report: Public Health Consequences of E-Cigarettes, Nat’l Academies of Sciences, Jan. 23, 2018, https://www.nap.edu/resource/24952/012318ecigaretteHighlights.pdf (last visited Sept. 9, 2019).

[21] NIOSH, supra note 7. See also OSHA, supra note 20.

[22] Sherry Knutson & Jennifer Steinmetz, The Evolution of Diacetyl-Related Litigation: Part 1, Law360, Aug. 18, 2016, https://www.law360.com/articles/829286/the-evolution-of-diacetyl-related-litigation-part-1.

[23] Rigotti, supra note 1. See also Chaudhary, supra note 7.

[24] Rigotti, supra note 1.

[25] Ross, supra note 10.

[26] GASP, supra note 17.

[27] Surgeon General’s Report supra note 1.

[28] Surgeon General’s Report supra note 1.

[29] Surgeon General’s Report supra note 1.

[30] Megan Brooks, Vitamin E Oil Potentially Linked to Vaping-Related Lung Illness, EMedicineHealth, Sept. 5, 2019, https://www.emedicinehealth.com/script/main/art.asp?articlekey=224242 (last accessed Oct. 20, 2019).

[31] Elaine Howley, Can Vaping Cause Serious Lung Disorders? U.S. News Health, May 29, 2018, https://health.usnews.com/health-care/patient-advice/articles/2018-05-29/can-vaping-cause-serious-lung-disorders; see also Acute Respiratory Distress Syndrome (ARDS), American Lung Association, https://www.lung.org/lung-health-and-diseases/lung-disease-lookup/ards/learn-about-ards.html (last accessed Oct 19, 2019).

[32] Acute respiratory distress syndrome: What you need to know, MedicalNewsToday, https://www.medicalnewstoday.com/articles/266682.php (last accessed Oct. 21, 2019); see also Lindsay McCauley et al., An Unexpected Consequence of Electronic Cigarette Use, 141 Am. Coll. of Chest Physicians 1110-13 (2012) (discussing a suspected link between a patient’s lipoid pneumonia and her recurrent use of glycerin-based oils found in e-cigarette nicotine vapor), available at http://chestjournal.chestpubs.org/content/141/4/1110.full.html; Darshan Thota, et al., Case Report of Electronic Cigarettes Possibly Associated with Eosinophilic Pneumonitis in a Previously Healthy Active-Duty Sailor, 47 J. Emergency Med. 1:15-17, (July 2014) (noting a possible correlation between patient’s e-cigarette use and his acute eosinophilic pneumonia); Mohammad Khan et al., Organizing pneumonia related to electronic cigarette use: A Case report and review of literature, 12 Clin. Respir. J. 1295-99 (Jan. 2018).

[33] Alessandra Caporale, et al., Acute Effects of Electronic Cigarette Aerosol Inhalation on Vascular Function Detected at Quantitative MRI, 293 Radiology 1, Aug. 20, 2019.

[34] Radcliffe, Shawn, Nearly 150 Hospitalized After Vaping, HEALTHLINE, https://www.healthline.com/health-news/vaping-may-be-causing-acute-lung-damage-in-teens (last accessed August 22, 2019).

[35] See e.g., Lavin, Kim, Leadership Chosen for JUUL Cases Consolidated in California State Court, https://verusllc.com/leadership-chosen-for-juul-cases-consolidated-in-california-state-court/ (last accessed March 2, 2020) (noting that nearly one hundred lawsuits against JUUL based on JUUL’s deceptive marketing has been consolidated in California state court).   

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