Any person who had purchased an e-cigarette will be able to bring his or her own class action law suit against the seller, or join an existing class action and possibly share in any damages awarded to users of this new product which the Food and Drug Administration [FDA] has declared “illegal,” says public interest law professor John Banzhaf, who has been leading the battle for FDA regulation of the product.
Banzhaf prompted the FDA to warn the public about the dangers of e-cigarettes, including hidden carcinogens and other toxic chemicals, encouraged the several legal actions against them which have already been brought or are about to be filed, and used legal warning notices to persuade PayPal and Amazon.com to give up e-cigarette sales. He’s also the man behind the ban
on cigarette commercials and public smoking bans, and he’s been called the “Dean of Public Interest Lawyers.”
In response to requests for legal assistance he is receiving from persons who purchased e-cigarettes based upon claims of safety, who subsequently learned that an FDA study showed that they contained deadly toxins and cancer-causing chemicals, Prof. Banzhaf has posted on line a template for drafting a class action law suit complaint against sellers of e-cigarettes. With this simple template, any attorney contacted by an e-cigarette purchaser can easily file his or her own new law suit.
This could be important because the plaintiffs and the attorneys who are the first to file class action product liability law suits often end up with the lion’s share of money recovered — including attorney’s fees — so a race to the courthouse to be the first to file in each state is quite possible, says Prof. Banzhaf.
To file a law suit, a purchaser need not have suffered any medical or other problem as a result of using the cigarettes product. Prof. Banzhaf explains that the legal actions which have so far been filed against e-cigarette sellers have relied upon consumer protection statutes which do not require any specific injuries.
Moreover, such law suits would not be affected by any decision in a federal law suit now pending which seeks to challenge the FDA’s jurisdiction over e-cigarettes. The FDA’s jurisdiction, and violations of consumer protection laws, are two very different legal issues, says Banzhaf.
For those e-cigarette purchasers who do not wish to retain their own attorney, Prof. Banzhaf says they may contact the attorneys who brought the initial class action law suit and seek to join the class or serve as plaintiffs in similar law suits in other states.
The legal actions filed to date have contended that sellers of c-cigarettes have violated consumer protection statutes by engaging in unlawful, unfair or fraudulent practices and unfair, deceptive, untrue or misleading advertising. Although the argument that the ads were unfair is based in part on scientific findings of the FDA, even a judicial ruling that the FDA at the time had no authority to regulate the product doesn’t invalidate the agency’s scientific findings about it, argues Banzhaf.
The FDA has reported that the e-cigarettes it tested contained detectable levels of known carcinogens and toxic chemicals to which users could potentially be exposed. The FDA said the toxic chemicals included diethylene glycol, “an ingredient used in antifreeze, [which] is toxic to humans”; “certain tobacco-specific nitrosamines which are human carcinogens”; and that “tobacco-specific impurities suspected of being harmful to humans – anabasine, myosmine, and B-nicotyrine – were detected in a majority of the samples tested.”
Banzhaf notes that virtually anyone who bought one or more e-cigarettes, based upon claims that they did not contain any of the cancer-causing chemicals found in tobacco cigarettes, would be able to bring a class action law suit in his or her state against the seller. Virtually all states have consumer protection statutes which permit law suits to be brought even if the purchaser suffered no harm from using the product.
The possibility of such law suits may be one reason why more e-cigarette wholesalers are finding it necessary to provide product liability insurance to their retail customers, and at least one insurance company is offering its own liability policies.
That company explains the need for such insurance this way: “the FDA has issued a warning about the product (e-cigarettes) because marketers are presenting the e-cigarette as a healthier alternative to regular cigarettes. In addition, the cartridge contains several chemicals including nicotine that are hazardous to your health.”
A copy of a class action law suit filed against one e-cigarette seller, which could serve as a template or model for similar class action law suits to be filed in other states, may be found at:
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
FELLOW, World Technology Network
2013 H Street, NW, Washington, DC 20006, USA