Californian Eric McGovern has filed a class action lawsuit against electronic cigarette company Njoy claiming that it markets e-cigs as safe despite evidence that they cause cancer. McGovern will probably have a difficult fight on his hands for a number of reasons.
The suit claims that Njoy markets its electronic cigarettes using deceptive tactics to convince the public that their products are harmless. However, the suit argues, e-cigs contain many of the same carcinogenic compounds found in traditional cigarettes. The suit also claims that although the company avoids making cessation claims to avoid regulation, many of its public statements and advertising materials heavily imply that their product can assist in smoking cessation efforts.
The lawsuit could end up being even more of a landmark case for the electronic cigarette industry than the original 2009 case against the FDA that determined that, absent health-related claims, e-cigs did not fall within the FDA’s jurisdiction for regulation and oversight. This lawsuit could force courts to rule based on the evidence science has found of the harm electronic cigarettes might cause (so far, it looks like almost none).
There’s plenty of problems with this case already, the most fundamental of which being the claim that e-cigs contain many of the same carcinogenic compounds found in traditional cigarettes. While there is evidence that some compounds found in e-cigs also occur in traditional cigarettes, the levels tend to be many fold below the level at which they occur in cigarettes. As well, cigarette smoke is believed to contain 10,000 to 100,000 different constituents. We’ve identified around 4,000 dangerous chemicals in cigarettes (70 of which are carcinogenic). So to claim that “many of these” can also be found in e-cigs borders on misleading and flirts with being completely wrong.
More recent research has found that there are far fewer dangerous chemicals in electronic cigarettes, and those that do appear in them, occur at several orgers of magnitude lower than they appear in cigarettes. Opponents of electronic cigarettes are intentionally exaggerating the risk to make e-cigs look bad. Diethylene glycol, for example, was only found in a single product in 2009 at relatively low levels. Since then, many opponents are quick to point to that study. Not a single study since then has found DEG in an electronic cigarette. Another example, formaldehyde appears in both electronic cigarettes and traditional cigarettes, but occurs at such low levels in e-cigs many experts argue that the second-hand and long-term impact of it is virtually nil.
Njoy is a very interesting target to choose as well. While it is certainly among the biggest on the market (believed to be the biggest by many), it was a direct part of the 2009 decision that the FDA couldn’t regulate electronic cigarettes as they currently stand. Njoy was party to the discussions of what constituted a health or cessation claim. This means that they are unlikely to make a claim, fly an advertisement, or do anything that might put them over the line on health claims.
Like I said earlier, this could end up being the landmark case for electronic cigarettes. Drawing the debate on the health impact of e-cigs into the courtroom forces a very serious look at the research that’s been done thus far. While it might be easy enough to prove the existence of certain harmful constituents, prosecution will has have to prove that they occur as sufficient enough levels to cause harm. Even further, proving that something actually causes cancer (enough so to claim damages) is a sticky area to tread into.
McGovern may believe the argument far easier to make than it actually is. In the minds of many individuals, electronic cigarette use still appear to be the same as smoking despite their differences. Perhaps McGovern believes the same. Perhaps he believes he’ll make a career out of taking down e-cigs the way other lawyers made a career out of taking down Big Tobacco. Only he really knows.
Ultimately, this case or one like it was quite inevitable. It’s results seem likely to take at least a year or two to sort out (minimum). But it could set precedent for what constitutes reasonable advertising of electronic cigarettes and legally outline what scientific research has revealed about them. Here’s hoping.