What’s Old Is New: Vaping and Big Tobacco

A Potential Danger Worse Than Cigarettes

What's Old Is New: Vaping and Big Tobacco
Bryan O. Blevins, Jr.

Bryan O. Blevins, Jr.

October 24, 2019 02:00 PM

Vaping and e-cigarettes have recently spent a considerable amount of time in the news. Much of this is due to lawsuits taking aim at manufacturers who took a product they knew to be dangerous and targeted young audiences through purposely misleading advertising. That the vaping industry chose to travel down this path is hardly surprising. After all, Big Tobacco had such success using the same playbook — why not try it again?

Recently, a friend remarked, “Who even smokes anymore?” Overcoming that perception and a growing attitude against smoking as both dangerous and dirty represents the biggest challenge to the success of the vaping industry. In 2018, the Centers for Disease Control and Prevention reported that smoking among adults in the United States had reached its lowest number ever: only 14 percent, or roughly 34 million people. These numbers, the CDC says, represent a 67 percent drop in the number of adult smokers since 1965.

This means the vaping industry has been forced to create a new market centered on former smokers and on nonsmokers. And while the Magic 8-Ball tells us the long-term viability of this endeavor is hazy and to ask again later, for the moment, at least, it has been an unqualified success.

Smoking Goes High Tech

How has the vaping industry accomplished this? Vape devices look and feel high tech. JUUL e-cigarettes, for example, are small and resemble USB sticks. You can recharge them by plugging them into a computer. They’re used with small pods filled with liquid nicotine that come in a variety of flavors, such as watermelon and strawberry lemonade. Instead of acrid smoke, they leave behind only a sweet-smelling vapor. Young audiences understand the dangers of smoking, but vaping is often framed as a healthy alternative to cigarettes, in much the same way that “light” cigarettes were marketed in the 1950s, ‘60s, and ‘70s. It should be noted that JUUL is owned, in part, by Altria Group, Inc., which also owns cigarette manufacturer Philip Morris.

Claims that vaping is healthier than smoking, or a good way for smokers to wean themselves off cigarettes, are not demonstrable at best and plain false at worst. JUUL pods, for example, contain as much nicotine as 30 to 40 cigarettes, a fact not advertised on high-dollar vaping commercials. This makes them potentially even more addictive than cigarettes. A 17-year-old boy in the Bronx died earlier this month after he was made sick by vape cartridges containing THC, the same ingredient that causes the high in marijuana. Just like menthol in the cigarettes before them, vaping is being given to consumers without a full explanation of what’s inside or what it does to you.

From television to social media, vape devices and e-cigarettes now have massive product market saturation. Many advertisements are aimed directly at young audiences by portraying vaping as fun and those who do it as cool. Vape, and you can be cool, too. This is perhaps the most recognizable method tobacco companies used in marketing cigarettes, and it was hugely successful. At one point, as many children could correctly identify Joe Camel as could identify the Disney logo. And who could forget, in 1961, when Fred Flintstone lit up a Winston cigarette? While executives consistently denied this was their intention, internal documents revealed that, of course, it was. Today, we are seeing this story repeated with vaping. When the CEOs of the seven biggest U.S. tobacco companies testified before Congress in 1994, every single one of them said, under oath, that their products weren’t addictive. In a 2015 interview with The Verge, an R&D engineer working for JUUL said, somewhat more straightforwardly, “Anything about health is not on our mind.” The message, both then and now, is the same: We don’t care.

Questions Unanswered

Philip Morris was founded in 1847. One hundred seventy-two years ago. People were smoking for generations before the negative impact that tobacco and nicotine have on one’s health were fully understood. The first e-cigarettes came onto the market in 2003. Sixteen years ago. It’s entirely possible that it will be years — perhaps many years — before we fully understand the harmful effects of vaping. At the time of this writing, federal health officials report that more than two dozen people have died of vaping-related illnesses, the majority of them under the age of 35. E-cigarettes have spread through schools like wildfire, and many of the lawsuits currently being litigated against vaping companies were filed by school districts themselves. The question everyone should be asking is, how many more will die before we finally do something about it?

As it stands now, the FDA has issued a warning letter to Juul Labs for its advertising and marketing of unauthorized modified tobacco products. The CDC has recommended that people refrain from using e-cigarettes and vaping products. Cities, counties and states are enacting or considering the enactment of areawide bans on the use of vaping products. Dozens of illness and death lawsuits have been filed against e-cigarette and vaporizer manufacturers, and more are coming. And just last week, the Panel on Multidistrict Litigation referred IN RE: JUUL LABS, INC., MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION-MDL 2913 to United States District Court Judge William Orrick in the Northern District of California. Are we set to experience “déjà vu all over again,” or will the government and our civil justice system act to prevent a second coming of the tobacco health crisis?

Bryan O. Blevins is an equity partner with Beaumont-based Provost Umphrey Law Firm, which is celebrating its 50th Anniversary this year. For more than 25 years, Bryan has prepared, tried and appealed numerous personal injury and civil litigation matters, including toxic tort, defective products, industrial negligence and contract actions. He is board certified in Personal Injury Trial Law from the Texas Board of Legal Specialization and a past-president of the Texas Trial Lawyers Association (2015 legislative year).

Matthew C. Matheny is an attorney with Provost Umphrey whose practice focuses on personal injury cases. Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization, Matthew handles a range of matters including industrial explosion accidents; automobile accidents; wrongful death; maritime and offshore accidents, railroad crossing accidents, aviation accidents; environmental contamination; chemical exposure; Federal Employers' Liability Act; Fair Labor Standards Act-Overtime Wage claims; Deceptive Trade Practices, Bad Faith Insurance Claims and mass/class actions.

Related Articles

Historic Settlement Reached In Boy Scouts Abuse Case

by Justin Smulison

A landmark settlement was reached in the biggest child abuse case against the Boy Scouts of America.

Historic Boy Scouts Abuse Case Settlement

Steve Yerrid Proves He’s a Top Gun among America’s Trial Lawyers…Again

by Nicole Ortiz

Trial lawyer Steve Yerrid’s career spans four decades, with continuous inclusion in Best Lawyers® since the 80s and over 250 verdicts and settlements of seven figures or more.

Steve Yerrid

Trending Articles

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation

by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez

by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing The Best Lawyers in The United Kingdom™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023

Announcing The Best Lawyers in France™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from France.

Blue, white and red strips

Announcing The Best Lawyers in Germany™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes

Education by Trial: Cultivating Legal Expertise in the Courtroom

by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing The Best Lawyers in Belgium™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Belgium.

Black, yellow and red stripes

Announcing the 2022 Best Lawyers™ in France

by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in France

We Are Women, We Are Fearless

by Deborah S. Chang and Justin Smulison

Athea Trial Lawyers is a female owned and operated law firm specializing in civil litigation, catastrophic energy, wrongful death and product liability.

Athea Trial Law Female Leadership and Success

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

What If Johnny Depp and Amber Heard Had a Premarital Agreement?

by John M. Goralka

Oh, the gritty details we’re learning from the latest court battle between Johnny Depp and Amber Heard. This unfortunate airing of dirty laundry may have been avoided with a prenup. Should you think about getting one yourself?

What If Johnny Depp & Amber Heard Had Prenup?

Announcing the 2022 Best Lawyers™ in Germany

by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in Germany

U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules

by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Destiny Fulfilled

by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright