In recent decades, there has been a significant decline in cigarette use, especially among the younger generation. Electronic cigarettes, also known as e-cigarettes, have begun to fill that void. E-cigarettes, while marketed as a cooler and safer alternative to traditional cigarettes, operate in almost the same way as traditional cigarettes. They contain nicotine-infused water that users inhale as vapor. They also come in a variety of different flavors, including cotton candy, chocolate, bubble gum, and crème brulee.

A significant number of class action lawsuits, however, have accompanied the rise in popularity of e-cigarettes. Recently, the Los Angeles Unified School District filed a class action lawsuit on behalf of all California school districts against Juul Labs, Inc., the manufacturer of the popular Juul e-cigarettes. The School District alleges that e-cigarette use among its students has caused it to incur significant costs to counter the risk of vaping and to develop protocols for the collection and disposal of e-cigarettes. The School District also alleges that e-cigarettes have negatively impacted the health of students and the educational environment. This class action is one among many class actions that have been filed across the country accusing e-cigarette makers of products liability, false advertising, and health-related claims.

It is uncertain whether class action lawsuits regarding e-cigarettes will be successful. E-cigarette makers have numerous arguments available to them to defend against class actions. For example, in C.B. v. Juul Labs, Inc, et al., a class action recently filed in the U.S. District Court for the Middle District of Louisiana, the plaintiff claims that her teenage son became addicted to Juul e-cigarettes due to Juul’s deceptive marketing practices. The defendants may be able to use commonality by showing that there are no questions of law or fact common to the class for the case to be certified as a class action. This case will require the Louisiana court to consider an innumerable number of different advertisements and their potential effect on each individual plaintiff.

Furthermore, in A.N. v. Juul Labs, Inc., et al., a class action recently brought in the U.S. District Court for the Middle District of Florida, the parents of a Florida teenager allege that their daughter suffered seizures after swallowing nicotine-infused liquid while smoking e-cigarettes. The defendants may be able to successfully argue that this case should not proceed as a class action because individual questions of law or fact predominate over questions of law or fact common to the class. The Florida court will need to consider each individual plaintiff’s e-cigarette use, medical history, and pre-existing conditions in order to determine both liability and damages.

The rise of class action lawsuits against the e-cigarette industry is an important legal development and industry players are paying attention. E-cigarettes are a multi-billion-dollar business and there are more class actions coming in the months and years ahead. Nevertheless, by employing the defenses discussed above, e-cigarette companies may be able to successfully defend against these claims in court.