The Honorable Judge James Selna of the Central District Court of California dismissed seven out of eight counts listed in a class action lawsuit last week against Lorillard Tobacco and the recently acquired Reynolds American. Plaintiffs from California, New York, and Illinois claimed that the two companies failed to warn consumers of the potential health risks of e-cigs by using deceptive advertising practices.
Judge Selna tossed the case out of court, stating that federal law supersedes state law in matters involving the labeling and advertising of tobacco products. The U.S. Food and Drug Administration (FDA) is officially responsible for regulating the tobacco industry thanks to the Family Smoking Prevention and Tobacco Control Act of 2009 and the resulting FDA deeming regulations of last May. What the FDA says goes, for the moment.
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According to federal law, the only requirement regarding warning labels is one stating the addictive properties of nicotine, which the Judge believes Lorillard Tobacco and Reynolds American are already in full compliance. Individual states do not have the legal authority to impose additional or stricter policies.
Judge Selna questions need for toxicity labeling
Although the dismissal is largely viewed as a victory for vaping, one complaint from the class action suit still lingers. California has a labeling law already on the books from 1986 entitled the Safe Drinking Water and Toxic Enforcement Act which requires proper labeling for merchandise containing certain hazardous chemicals.
Since many federal agencies believe that formaldehyde is present in the vapor from electronic cigarettes, Judge Selna is allowing this single point of contention to move forward through the California judicial system.
The judge also identifies the need for further clarification into the possible hazardous chemicals found in different brands of e-liquids. He referred to an FDA study that mentions “detectable levels of toxic cancer-causing chemicals, including an ingredient used in anti-freeze, in two leading brands of e-cigarettes and 18 various cartridges.” While the FDA statement is rather vague, Selna also cites other sources claiming that formaldehyde and Diacetyl, a chemical known to cause lung cancer, are also sometimes found in e-cigarette vapor.
While the dismissal of seven counts in the California class action is considered a vaping victory by the industry, the remaining cause of action will likely lead to further, much deeper investigations into the possible types and quantities of hazardous chemicals found in e-cigs and vaping devices. However, even when wrapping up his finally ruling, Judge Selna makes something very clear. “…State labeling requirements…that are ‘different from, or in addition to,’ the FDA’s requirement are preempted.”
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