A major retailer of electronic cigarettes has been sued in a multi-count civil action which seeks penalties of $25,000 for each sale as well as refunds to customers. Several other sellers of electronic cigarettes have avoided suits by entering into voluntary settlements, says public interest law professor John Banzhaf of Action on Smoking and Health (ASH), the organization which wrote to state attorneys general asking them to bring this type of legal action against the sellers.
According to the complaint, Smoking Everywhere “did not submit their electronic cigarettes to FDA for pre-approval because Defendants believed that they found a regulatory loophole that allowed them to sell electronic cigarettes without FDA approval, so long as the devices were not sold as smoking cessation devices.”
But the FDA “has already declared that electronic cigarettes are subject to FDA
approval as a drug or medical device, much like nicotine patches, gum and inhalers — and therefore they are illegal until they are cleared,” and has stated that electronic cigarettes are “unapproved new drugs and/or misbranded drugs or devices,” and appear “to be a combination drug-device product that requires pre-approval, registration and listing with FDA.”
Banzhaf notes that there is legal precedent for classifying products as drugs or drug devices even if the sellers make no claims whatsoever as to their use.
The complaint charges that Smoking Everywhere has engaged in the “deceptive sale and promotion of electronic cigarettes” which “causes immediate harm to public health, safety, and welfare.” It says defendants made claims which were deceptive because “Defendants did not possess such evidence because such evidence does not exist.” These claims included that e-cigarettes “are safer than traditional cigarettes.”
The complaint also charges that Defendant wrongfully claims that its product contain “no harmful carcinogenic ingredients” and are “free of [cigarette-type] tar.”
Defendants were also charged with failing to warn customers that “nicotine can cause dangerous increases in heart rate and blood pressure and should not be used by individuals with hypertension or heart disease.”
Smoking Everywhere was also cited for “target[ing] adolescents and youths who are likely not already addicted to nicotine” and for “knowingly and unconscionable targeting ‘kids” by, among other things, telling listeners to the Howard Stern radio show that “for kids out there, you still look cool ’cause it still looks like a cigarette.”
The complaint alleges that “as a result of Defendants’ unconscionable promotion of electronic cigarettes to young people, Defendants’ product likely will function as a gateway to tobacco abuse and nicotine addiction in young people.”
This civil law suit seeks “civil penalties of up to $25,000 for each willful violate of the Unlawful Trade Practices Act,” as well as full refunds to customers.
Previously, ASH, in a legal letter sent to PayPal, advised the company that providing payment for electronic cigarettes “appears to be aiding and abetting the sale of these illegal products by providing payment vehicles to Internet sites which are selling them, and doing so in interstate commerce and in possible violation of consumer protection laws in the individual states.”
PayPal was also warned that: “As the FDA and others have noted, electronic cigarettes pose a wide variety of potential dangers to users, and perhaps also to those around them, both of whom inhale a mixture of nicotine (a dangerous drug) and propylene glycol (which is used in antifreeze and may cause respiratory tract irritation
In response, PayPal is no longer facilitating the sale of this product. Facebook has reportedly decided that “we do not allow ads for electronic cigarettes and will not allow the creation of any further Facebook Ads for this product.”
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law and Executive Director
Action on Smoking and Health (ASH)
America’s First Antismoking Organization
2013 H Street, NW, Washington, DC 20006, USA
(202) 659-4310 // (703) 527-8418 // ash.org