Electronic Cigarette Seller Sued – Fines and Penalties Sought

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


12 responses to “Electronic Cigarette Seller Sued – Fines and Penalties Sought

  1. E-cigs got me off cigarettes, but now I’m back to smoking thanks to the paypal ban. I just about had both habits quit. I really think you should concentrate on cigarettes.

  2. Thank you FDA for making me quit e-cigs and getting back to normal cigs!
    My lungs are getting tar again!

  3. E cigarettes also got me off of cigarettes. My lungs feel better… i as a person feel 150% better. My kids dont have to breath it. Now you guys want to ban a safer form? concentrate on cigarettes. how about you WORK with the FDA to BAN traditional cigarettes? no you dont want to do that.. If cigarettes were banned you wouldent have this half a$$ed website running. Leave the E smokers alone.

  4. BANZHAF and ASH.org should stick to hunting down TOBACCO cigarette users. And all that evil SHS out there.
    No studies show proof of harm to others from the electronic cigarette. No harm to you. Why the outrage?
    They say FLAVORS will entice children to use these tobacco less cigarettes. Commit NRT and Nicotrol NRT products also come in kid friendly flavors and contain nicotine. Both products can be bought online. Wheres the outrage?
    Chantix is an FDA approved NRT. Well one of the side effects is suicidal thoughts. Just because its FDA approved it, is it safe? Its still on the market. Wheres the outrage?
    This is about a smokers health. If they can get nicotine from a less harmful method. Whats the problem? Why not look at potential for smokers to better their health using this over tobacco?
    Is soda and coffee a drug delivery device for caffine?
    My health is more important then these guys agenda. People should take a hard look at these people. They serve no interest except their own.

  5. kids think e-cigs are dorky, I know mine and many others do. my coworker caught her kid taking her nicorette gum TO SCHOOL, yep found it in his backpack. Alcohol has more flavors than e-cigs and you can get zero nicotene in e-cigs, even near-beer has alcohol. Get back to your root cause, I thought it was tobacco cigarettes.

  6. I wish these anti-smoking fanatics realized that by attacking e-cigarettes they’re actually supporting big tobacco. Reason is always the first casualty inflicted by zealots. As for myself, after 3 months of vaping e-cigs, my lungs have cleared substantially, I can breath much more deeply, and I have more energy. I hope I don’t have to go back to the FDA approved tobacco cigarette; It was killing me. But if the e-cig is banned I’m sure I’ll go straight back to tobacco.

  7. I think this is truly absurd! I have tried everything to quit smoking. After a friend let me borrow an E-cig…I decided this was something that would finally work! My family was ecstatic. As soon as I started looking into where to buy one…I found all this nonsense about a ban?!?!?! I’m flabbergasted!! The only thing I can see is the government losing revenue, since it now costs over $6.00 for a pack of regular cigarettes. Economically, Environmentally, and from health risk perspective…these E-cigs seem like a “no-brainer”. Alas, look what we’re dealing with. I guess I’ll continue to roll my own, pollute my lungs, and put the general public at risk with my secondhand smoke. Golly, i sure love America.

  8. Oh god I cannot believe these idiots. After 6 months off tobacco I know I’m going back due to weight gain and generalized anxiety. Guess what my choices will be E-Cigs or tobacco. Eeedeeeiuuts! Newsflash: Nicotine is addictive but not unhealthy in general. You wanna force me back on that cancerous crap out of your blind zealotry for tobacco and anything related? Ban tobacco no vaporized nicotine.

    What happened to your common sense and desire to help?

  9. Government agencies that wish to see e-cigs banned are clearly retarded…actually, (as everything) its all about the money. They are threatened by not getting that tobacco tax revenue when 50 or 60 percent of people trying to quit start buying e-cigs instead…its very simple really.

    If they were really concerned about health do you think they would have the slightest problem with e-cigs? No.

    So that tells you all you need to know about their motives.

  10. Only way to beat it is straight flat out cold Turkey, these devices and gum, etc, only prolong the pain.
    Six months off a 60 a day habit, and doing fine….
    keep trying to quit..

  11. Well that’s good for you that you were able to quit without asistance. But most smokers can’t do it. Mostly because of all of the addictive ingredients that big tobacco has been stuffing in those things for years. With my e-smoke I know exactly what ingredients are in them, as well as the exact nicotine content.
    I can name what is in the e-juice, prpylene glycol, vegetable glycerin flavorings and nicotine.

    Can you name all of the chemicals in a cigarette? I thought not, and neither can I.

    So don’t knock people who are switching to a safer alternative to try and quit.

    I have been smoke free for 7 months. I was a two pack a day smoker for 35 years.

  12. Ambulance chasers and nanny-state leftists once again deciding what is BEST for we the under-classes.

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