E-Cig Makers Face Suits Over Alleged Carcinogens

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By Steven M. Sellers

Nov. 19 — E-cigarette makers including R.J. Reynolds Vapor Co., NJOY, Inc., and Fontem US, Inc. fail to warn consumers that their vaping products produce two potentially cancer-causing agents in violation of California law, a health advocacy group says in newly filed complaints.

The two citizen suits assert that all of the makers named as defendants in the complaints made at least one product recently with high levels of formaldehyde or acetaldehyde.

One maker's e-cigarette tested more than 470 times higher than California safety standards, the Center for Environmental Health said in a statement about the suits.

The complaints, filed Nov. 19 in California Superior Court for Alameda County, contend that 14 manufacturers violated Proposition 65 and other state laws by failing to warn consumers—many of them teenagers—about the health risks posed by the electronic, vapor-based cigarettes.

E-cigarettes, unlike traditional cigarettes, electronically heat liquids that contain nicotine, flavoring and other additives. The heat vaporizes the liquid, allowing the consumer to inhale it.

Under Prop 65, it is unlawful for businesses to knowingly expose consumers to potentially cancer-causing chemicals above levels set by the state without a clear warning of the danger.

“Defendants' products, when used as directed, produce significant amounts of formaldehyde and/or acetaldehyde in the aerosol inhaled by users,” according to one complaint.

That triggers the manufacturers' duty to warn users of the dangers under Prop 65, and their failure to do so justifies civil fines under the California Health & Safety Code §25249.11, the other complaint says.

Risks caused by the makers' warning failures are magnified by the rising popularity of vaping among teenagers, according to the complaints.

E-cigarette use among high school students tripled from 2013 to 2014, according to a report published by the Centers for Disease Control and Prevention last April.

“The tobacco industry is banned from targeting teens in cigarette ads, but they and the rest of the e-cigarette industry use all of the banned tactics in marketing e-cigarettes,” Michael Green, CEH's executive director, said in the statement.

R.J. Reynolds didn't respond Nov. 19 to a request for comment.

But the Smoke Free Alternatives Trade Association (SFATA), which represents e-cigarette makers, distributors and others, disputed the merits of the litigation and said such suits are dampening traditional tobacco smokers' efforts to move to less dangerous products.

“We continue to question the concerted campaign of misinformation and frivolous lawsuits which only serves to further confuse and discourage smokers from making the switch to what has shown to be a far less harmful alternative to cigarette smoking,” Cynthia Cabrera, the trade group's executive director and president, said in a Nov. 19 statement sent to Bloomberg BNA.

Toxicological Studies in Question?

A CEH spokesman told Bloomberg BNA in a Nov. 19 e-mail that the complaints were based on the results of the health advocacy group's investigation.

The foundation of the resulting report, however, has previously been questioned by the SFATA.

The vaping trade group said in September the CEH report needed scientific peer-review, including “analysis on the actual testing environment, including methods that replicate daily use”.

The trade group also has defended the industry from assertions that e-cigarettes are marketed to minors.

“Vapor products are intended only for adult smokers and adult vapers and the industry does not market to underage consumers and fully supports age restrictions on their use,” the SFATA said in September.

60 Companies Sued, One Settled

The legal actions increase to 60 the total number of e-cigarette manufacturers sued by CEH, the health advocacy organization says.

It sued 19 companies last February and reached a settlement with one, Sapphire Vapor, Inc., according to CEH. That company agreed to restrict sales and marketing to teens, and to include proper health warnings.

CEH said in its Nov. 19 statement that it bought the vaping products it tested at San Francisco area pharmacies and convenience stores between February and March. The products were tested by an “independent lab” certified by the American Association for Laboratory Accreditation, according to CEH.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com.