The Impending Flow of Vape Related Lawsuits

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In the 1980s a host of lawsuits emerged, which alleged cigarette manufacturers knew their products were addictive and caused lung cancer, but failed to warn consumers about the inherent dangers.

History may be in the process of repeating itself, this time amid a controversy that surrounds a modernized smoking-related device.

Several plaintiffs have already filed lawsuits against the largest e-cigarette corporate target, alleging that the company’s products create medical problems for consumers and additionally create addiction issues, particularly for teen users.

Like so many others before him, one Chicago teenager recently sued an e-cigarette company as well as a retailer over his own e-cigarette usage.

In papers filed by young user Adam Hergenreder, manufacturer Juul Labs Inc. is named as a defendant, along with a Waukegan gas station that allegedly sold products illegally to the teen. In Hergenreder’s state (Illinois), tobacco products are only allowed to be sold to those who are 21 years of age or older.

Juul is the leading manufacturer of e-cigarette devices and e-liquid flavors. It controls nearly three-quarters of the American vape market, which is a massive market in and of itself, and the company’s value is said to be in the tens of billions of dollars range.

After having difficulty breathing and experiencing tremors, among other symptoms, Hergenreder was hospitalized with severe lung damage. The young man claims he started his vape activity at age 16 to “fit in” with his friends. He also claims he was unaware that the e-cigarettes contained nicotine. Believing that the products were safe, Hergenreder engaged in vaping multiple times a day.

Juul is alleged in the lawsuit to have used deceptive marketing tactics, which targeted adolescents. It is further alleged that use of its product ultimately created a serious and dangerous addiction for the individual partaking, because of the amount of concentrated nicotine and other harmful substances that are purportedly contained in the product.

Juul has had a significant online and social media presence, which it has used in its advertising campaign to make e-cigarettes appear trendy and hip, thereby appealing to young people.

In a January 2019 study, researchers at Stanford University analyzed Juul’s marketing approach, including its website, social media platforms, hashtags, and campaign emails. Researchers found that Juul’s advertising imagery in its first six months on the market was manifestly youth oriented. Results indicated that the product’s presence on Instagram created online communities of young people who would post videos of vape related activity.

Hergenreder’s case is part of a response to a growing health concern related to the vape merchandiser. The states of Illinois and Indiana have both had individuals lose their lives as a result of vape related illnesses. The Centers for Disease Control indicates that it has received reports of six deaths and over 450 possible cases of e-cigarette related lung illnesses.

Consequently, in addition to civil lawsuits, Juul is facing mounting scrutiny by local, state, and federal officials, much like the tobacco companies experienced in the 1980s and 1990s. Gov. Gretchen Whitmer of Michigan and Gov. Andrew Cuomo of New York recently banned flavored e-cigarettes. And from the Oval Office, President Trump told reporters that he was planning to take action after a sixth person recently died from a vape related lung illness.

Noting the seriousness of the issue, President Trump indicated that “some very strong rules and regulations” were forthcoming.

Shortly thereafter, Secretary of Health and Human Services Alex Azar announced a plan to ban flavored e-cigarettes at least until a formal review had been conducted by the Food and Drug Administration (FDA).

Juul has responded with a statement that it has an “aggressive action plan to combat underage use.” The company stated that it is seeking to “preserve the opportunity to eliminate combustible cigarettes, the deadliest legal consumer product known to man.”

Juul shut down its Facebook and Instagram accounts as of last fall in response to complaints, and has also pulled flavored products from brick-and-mortar retail locations.

The FDA has been unable thus far to identify a single source as the cause of e-cigarette related illnesses; however, theories suggest that illnesses may be related to vitamin E acetate (found in THC) or the combined effects of nicotine, flavorings, and solvents.

Although Juul claims in advertising that its products are a healthier alternative to traditional cigarettes, for teenagers e-cigarettes appear to be a gateway product to conventional cigarettes. A 2015 study at the University of California, San Francisco, and a 2017 Canadian study at the University of Waterloo both found that teenage vape users were more likely than their non-using counterparts to begin smoking traditional cigarettes after having experienced the sustained use of e-cigarettes.

In the 1980s tobacco companies defended against lawsuits, many times successfully, by asserting that smokers knowingly assumed the risks when they began smoking, including the risk of cancer.

In the 1990s, after documents were leaked that showed tobacco companies were aware of the addictive nature of tobacco, plaintiffs began to be successful in obtaining favorable verdicts and settlements.

Still, it remains to be seen whether the e-cigarette industry will be treated in the same manner as the tobacco industry, or perhaps even more harshly.

President Trump’s Emergency Declaration Will Survive Lawsuits

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According to Rep. Adam Smith (D-Wash.), the new Chairman of the House Armed Services Committee, President Donald Trump possesses the lawful authority to use emergency powers to fund and build a barrier at the border.

In response to an interview question about the legality of the president’s recent emergency declaration, Smith told host of ABC’s “This Week” George Stephanopoulos, “Unfortunately, the short answer is yes. There is a provision in law that says the president can declare an emergency. It’s been done a number of times…” The congressman added that the president would be the recipient of a court challenge.

The lawsuit avalanche has just begun. More than a dozen states are filing suits challenging the emergency declaration. A case in point is the recent one declared by California Attorney General Xavier Becerra.

It is simply a fact that under existing law the suits should eventually lose when the U.S. Supreme Court ultimately gets the case.

Even Democrats such as Smith and various liberal legal commentators have admitted that President Trump has the statutory authority to declare the border crisis to be a national emergency, and he will therefore be able to adequately fund a border barrier.

The declaration by a president of a national emergency is nothing new. There have been 58 national emergencies declared since the National Emergencies Act of 1976 (NEA) was signed into law. Currently, there are 31 active national emergencies in effect. President Bill Clinton declared 17, and President Barack Obama declared 13 of them.

National emergencies exist today in remote places such as Yemen, Lebanon, Zimbabwe, Sierra Leone, Burundi, Myanmar, and Somalia. The current national emergency declared by President Trump deals with a crisis occurring on the U.S. Southern border.

The NEA was originally passed to rein in the authority of the president to use emergency power. The law requires the occupant of the Oval Office to renew declarations of emergencies annually, and it gives Congress the potential ability to terminate a state of emergency. Congress has routinely renewed most past declared emergencies without raising meaningful objections or litigation.

In order to terminate President Trump’s recent declaration of emergency, Congress must pass a joint resolution and submit it to the president for his signature. If the president were to veto the resolution, as President Trump would most certainly be expected to do, Congress would have to come up with a veto-proof supermajority to end the state of the emergency.

When Congress, via the NEA, granted the president the power to declare a national emergency, it did not define the meaning of the phrase. The power of any president to declare a national emergency ends up being very broad.

President Trump’s authority to do so does not arise solely from the NEA, though, but also from the presidential power to protect the nation and control the orderly process of entry into the United States.

Supreme Court precedent recognizes the power of the executive branch to control the admission and exclusion of foreign nationals and generally views this authority as mostly unsusceptible to interference by courts.

The funding for a border barrier has already been given the blessing of Congress via enacted legislation that was signed into law. The law of the land, as stated in the Secure Fence Act of 2006, is that a border barrier shall be built along the U.S. Southern border.

Democrats are alleging that President Trump’s emergency declaration is seeking to use an emergency as a means to obtain what Congress had refused to authorize. However, Democrats are evidently more than willing to have the judicial branch step in to end a declared emergency, rather than follow a law that specifically states how Congress is mandated to carry out the process of overriding an emergency declaration.

There was no mass rush to file lawsuits and no cries of abuse of power on the part of Democrats when President Obama, after stating that he did not possess the legal authority to do so, proceeded to bypass Congress after it refused to pass immigration reform. He simply created with a stroke of his pen a program that fundamentally altered immigration laws.

The former president additionally funded some significant parts of the Affordable Care Act, after Congress had denied him such funding. And he also funded the undeclared war in Libya, after Congress had turned down his funding request.

In is clearly apparent that Democrats are not concerned with the law, but rather they are in opposition to any kind of border barrier of which President Trump might be in favor. This is simply due to the fact that President Trump made the wall a centerpiece promise during his 2016 presidential campaign. Democrats have been relishing in anything they believe might harm him politically, and they continue to do so.

The ugly reality is that the primary reason Democrats are seeking to stop the construction of any type of border barrier is that barriers work, and they do not want anything to be implemented that might curb the mass migration of their would-be voters.