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Oregon Sues Electronic Cigarette Maker

Charges firm is targeting kids

August 26, 2009

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Weeks after reaching a settlement with three retailers to block sale of the electronic cigarette NJOY, the state of Oregon is taking another e-cigarette maker to court.

Oregon Attorney General John Kroger is suing Smoking Everywhere, alleging that the Florida-based e-cigarette company made false health claims about its nicotine delivery device and targeted children with sweet flavors such as bubblegum, chocolate and cookies 'n' cream.

Electronic cigarettes are not approved by the U.S. Food and Drug Administration (FDA) and some contain known carcinogens. Even so, they are advertised on radio and television, where tobacco cigarettes have been banned from the airwaves for three decades.

Thus far, Oregon remains the only state that has taken legal action against e-cigarette importers and retailers. In addition to the recent settlement with retailers, the state reached agreement with Sottera, Inc.,distributor of NJOY, prohibiting it from doing business in Oregon until local and national standards are met.

Kroger said he offered to settle with Smoking Everywhere, but the company rebuffed his offer. The result was the attorney general's lawsuit.

As a general rule, nicotine products other than traditional tobacco products used to get a nicotine "buzz" or to quit smoking are considered by the FDA to be drugs and must be submitted for pre-approval. Prior to approval, the FDA requires manufacturers to submit reliable scientific evidence that proves the product is safe and effective for its intended use.

Kroger said Smoking Everywhere did not seek FDA pre-approval under the theory that a regulatory loophole allowed the sale of the devices as long as they were not marketed for smoking cessation. E-cigarettes are not approved by the FDA for any purpose. The FDA has rejected the defendants' arguments and has seized e-cigarette shipments from China.

Smoking Everywhere responded by suing the FDA. Sottera, Inc., whose electronic cigarettes were also seized by the FDA, later joined the suit.

The FDA has never declared e-cigarettes safe for public consumption, but they remain easily available throughout the country - except in Oregon, where the Department of Justice in July reached agreements with retailers to temporarily stop selling them while DOJ continued its investigation.

Electronic cigarettes are designed to mimic the look and experience of smoking a conventional cigarette. Smoking Everywhere e-cigarettes contain a battery-operated heating element and a replaceable plastic cartridge that contains various chemicals, including liquid nicotine. The heating element vaporizes the liquid, which is inhaled by the user.

Oregon's lawsuit alleges that Smoking Everywhere has marketed e-cigarettes as safe in general and safer than conventional cigarettes, yet the company possesses no scientific evidence to support such claims.

Smoking Everywhere claims that e-cigarettes contain "no harmful carcinogenic ingredients" and are "free of tar & other chemical substances" that are "produced in traditional cigarettes." In fact, lab testing by the FDA found tobacco-specific nitrosamines, which are known carcinogens in humans. FDA testing also found diethylene glycol, an ingredient used in antifreeze that is known to be highly toxic in humans.

Some electronic cigarette cartridges have been sold as containing no nicotine, but FDA testing found detectable levels of nicotine.

Oregon's lawsuit also alleges that Smoking Everywhere's promotional efforts target adolescents and youths who may not already be addicted to nicotine. Although Smoking Everywhere claims e-cigarettes are "intended for use by adult smokers," the lawsuit alleges that advertisements are designed to attract young people.

For example, advertisements use young female models who look like teenagers. The use of sweet flavored cartridges such as bubblegum and cookies 'n' cream also appeals to young people. Further, as part of its advertising campaign, Smoking Everywhere staged a promotional event on the Howard Stern radio show that told listeners: "For kids out there, you still look cool 'cause, like, it still looks like a cigarette..."

"We're fighting to make sure kids are protected from unapproved gimmicks like e-cigarettes that get them hooked on nicotine," Kroger said.

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