By Jennifer Kocher, Cowboy State Daily
The Natrona County School District’s lawsuit against e-cigarette giant JUUL Labs has been selected as one of 12 to indicate how attorneys should proceed with more than 250 similar lawsuits filed across the country.
The lawsuit has been selected as a “bellwether” case, one of a dozen that will be used to show how JUUL might respond to other lawsuits, whether that be to settle out of court or go to trial, said Jason Ochs, the Jackson-based personal injury attorney representing Natrona County School District No. 1.
Wyoming’s lawsuit is one of many filed across the country against the e-cigarette company that have been grouped together based on similar allegations against JUUL, which makes up about 85% of the e-cigarette market.
The first bellwether case involving San Francisco Unified School District is set to go to trial in June 2023 in northern California federal district court. Natrona County’s case, which will be tried in Wyoming’s U.S. District Court, has yet to be scheduled.
Borrowing A Page from Big Tobacco’s Playbook
The 81-page complaint filed by Ochs in June of 2020 laid out a long list of allegations against JUUL, including that it targeted marketing directed specifically at susceptible underage teenagers.
These marketing techniques using influential social media influencers, Ochs argued, fueled a nationwide epidemic of young smokers hooked on “highly addictive nicotine products” at great profit for itself.
The lawsuit further noted the success of the marketing, with a 78% increase seen in e-cigarette use among high school students between 2017 and 2018 and a 48% increase in middle-school users.
Other complaints against the company included allegations that it buried damaging studies about the potency and addictive properties of the company’s products.
The lawsuit cited marketing strategies of the past used by large tobacco companies to attract younger users. It alleged that JUUL used targeted marketing campaigns “to portray its e-cigarette products as trend-setting, stylish and used by the type of people teenagers aspire to be” by using social media influencers and third-party affiliates who marketed the product directly to students.
The lawsuit additionally claims the e-cigarette company also “misrepresented the amount of nicotine a JUUL device delivers to a user’s bloodstream and the increased risk of nicotine addiction” and marketed the product as a healthy alternative to cigarette smoking. It also designed its products be both aesthetically appealing and to look like USB “thumb drives” for easy concealment.
JUUL has already settled several similar lawsuits filed in other states.
In a November 2021 settlement with the state of Arizona, JUUL agreed to pay $14.5 million to the state while vowing publicly to “reset our company” and “to advance a fully regulated, science-based marketplace for vapor products” through their support of Tobacco 21. The program is a nationwide marketing campaign that offers retailers marketing materials to alert consumers that nationally, the minimum age for tobacco use has been set at 21.
Earlier in 2021, the e-cigarette company also paid out a $40 million settlement with the state of North Carolina.
In the wake of the settlements, the e-cigarette manufacturer vowed to change its practices to no longer market to teenage users.
“We seek to continue to earn trust through action. Over the past two years, for example, we ceased the distribution of our non-tobacco, non-menthol flavored products in advance of FDA guidance and halted all mass market product advertising,” JUUL Labs said in a statement following the payout. “This settlement is another step in that direction.”
Ochs has a track record of taking on corporate giants who he feels have crossed the line when it comes to public safety through targeted marketing and lack of oversight.
In January, Ochs announced a $52 million settlement for a handful of Wyoming counties and municipalities in the “OneWyo Opioid Settlement Agreement.” Wyoming’s share came out of the $26 billion global settlement against McKesson, Cardinal Health and other major pharmaceutical distributors accused of fueling the nationwide opioid epidemic.
Both Natrona County and Casper received payouts from that settlement, as did the cities of Cheyenne, Rock Springs, Riverton, and Laramie, Sweetwater and Carbon counties.
Much like the opioid lawsuit, taking on the e-cigarette giant was personal for Ochs. One of his former clients told him about his teenage children who were hooked on the products, prompting Ochs to check it out for himself.
He was dismayed by the easily disguised e-cigarette devices as well as the deceptively benign flavorful JUUL pods and high concentration of nicotine.
Further investigation into the marketing techniques and the dangerous manner in which he felt these products were being peddled to young teenagers drove him to take action.
“The best way to abate the problem was to represent the school district as opposed to individual families,” he told Cowboy State Daily.
To this end, with the exception of Natrona County, no other school districts have shown interest in signing on to the lawsuit, despite the lack of cost and work on their part, he said.
“When I tell them it’s free, and I’ll do all the work, they look at me skeptically,” he said, noting that the past two years of COVID have imposed restraints on the districts that seem to make them weary of taking anything else on at this point.
The Natrona County School District, however, was eager to sign on.
In a May 11, 2020, NCSD Board of Trustees work session, the attorney for the district, Craig Silva, signaled the district’s willingness to sign on to the lawsuit, indicating that vaping is a problem among Natrona County students based on feedback from school principals, law enforcement and community members.
“Here in Natrona County, two out of three students in high school are regularly vaping or about 60% of the high school population and in the middle schools,” Silva told the board, urging it to take leadership on the growing issue. “What that means is if you do that, you’re going to be the lead school district – the only district in the state – that at least engaged counsel to investigate and possibly bring action against JUUL.”
The Board voted unanimously at the work session to enter the lawsuit.
Other districts can also join, Ochs said, though the four-year statute of limitations is quickly closing with two years left to sign on.