E-Cigarette Litigation is Heating Up and The Science is Too

Posted by on June 6, 2019

Manufacturers, retailers, and distributors of e-cigarettes are likely to be defending themselves in against a variety of claims involving these products. The e-cigarette litigation landscape is evolving quickly with several high-profile lawsuits filed over the past several weeks by Attorneys General of Massachusetts and North Carolina, and consumers such as the Nessmith Class Action, Swearingen and Peavy Class Action, and a class-action that was recently permitted to move forward in San Francisco (among others), and other cases in the wings, such as this one by the Public Health Advocacy Institute (PHAI) at Northeastern University.

To date, most lawsuits related to e-cigarettes have been product liability claims such as the “battery exploding e-cigarette lawsuits,” and have been filed by some of the most prominent plaintiff’s attorneys including attorneys from the Motley Rice firm.

But the latest round of lawsuits allege that defendants have designed and marketed their products to attract young people and have failed to warn consumers about the risks associated with the use of these products, and nicotine specifically. These lawsuits are riding in tandem with the intense scrutiny that e-cigarette companies have come under by regulators and other groups (such as the AAP et al. v. FDA suit) which has generated considerable market uncertainty for e-cigarette manufacturers and retailers, as well as the consumers who have benefit from these products.

In parallel to the shifting litigation and regulatory landscapes is a large volume of scientific information that is being published every week. This emerging body of literature is relevant to both litigation and for regulatory filings such as responses to proposed FDA actions or submissions like the Premarket Tobacco Application (PMTA) (final guidance released by the FDA in June 2019) and Modified Risk Tobacco Product (MRTP) pathways.

The current volume of new science is staggering—an average of ~40 articles relevant to e-cigarettes are being published every week. By using a simple keyword search in the PubMed database, we generated the following graphic which depicts the increase in literature over the past decade.

Keep in mind that this is an underestimate of the actual number of publications since a more sophisticated keyword search strategy and searches of other databases would certainly turn up additional literature. For instance, this search did not comprehensively identify topics related to nicotine, heat-not-burn, and other alternative nicotine delivery systems (ANDS) literature. There are also many source of grey literature that are important to track as well, such as data presented at conference proceedings, including the Global Forum on Nicotine. For interested readers, the proceedings of the 2019 meeting are available online:

As new scientific information continues to emerge and expand, attorneys on both sides will have to adjust their strategies to adapt to new information which will inform about new risks and aid in developing better defenses.

With this level of new publications, it comes as no surprise if you are spending too much time searching for articles and not enough time reading them and understanding their potential impact on litigation or business.

As the e-cigarette litigation and regulatory landscapes shift, don’t get caught off-guard by falling behind on the science. If you are frustrated with your current scientific literature search strategy (on vaping/e-cigarettes or any scientific topic for that matter), get in touch and learn how DataTrove® can save you valuable time and prevent frustration.

 

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