The electronic cigarette, also known as an e-cigarette, allows people to enjoy the behavioral aspects of smoking, including the hand-to-mouth action of smoking with without burning tobacco. Using an e-cigarette is commonly known as “vaping.” When someone vapes, the battery-operated e-cigarette heats liquid into a vapor which can be inhaled. The vapor may contain nicotine (the addictive drug in tobacco), flavoring, and other chemicals. E-cigarettes can also be used with marijuana, hash oil, or other substances.
Vaping activity has risen considerably within the last several years. Particularly, vaping has surged in the past two years among teenagers and young adults. According to the federal centers for Disease Control and Prevention, more than 20% of high school students reported vaping in 2018 – almost twice the 2017 rate. This translates to 3 million high school students using e-cigarettes in 2018 – more than double the number who reported using traditional cigarettes.The rise in vaping has been accompanied by the rise of vaping-related injuries and corresponding lawsuits. However, recent studies on vaping have unfolded discoveries which may be helpful in defending these lawsuits.
THC-containing Vaping Products
Reports have recently confirmed that most patients with e-cigarette product use-
associated lung injury – known as EVALI – used THC products in their e-cigarettes. According to a Centers for Disease Control and Prevention (“CDC”) press release, new cases of the illness have continued to decline. In the press release CDC Director Robert R. Redfield commented, “These reports build on the continued scientific progress CDC and our partners have made to reduce the number of EVALI cases.” “It is also critically important that we continue to do all we can do to protect Americans — particularly young people — from this serious health threat.”
The CDC and U.S. Food and Drug Administration now recommend not using any THC-containing vaping products. In particular, the CDC and U.S. Food and Drug Administration recommend not using such products from informal sources including in-person or online dealers. These recent recommendations slightly ease the CDC’s October 2019 message, when the agency encouraged people to not use vaping products altogether. According to a recent report, 82% of EVALI patients nationwide in America reported using vaping products containing THC, while 57% reported using nicotine-containing products. Of those, 33% reported using exclusively THC-containing products and 14% reported using exclusively nicotine-containing products.
Another recent report from the CDC highlighted findings from people suffering from
EVALI in Illinois, where nine out of 121 patients reported using only nicotine-containing products. According to the CDC, the findings support earlier data suggesting that, while products containing THC and vitamin E acetate play a major role in the outbreak, there is not enough evidence to rule out contribution from other chemicals of concern. The CDC reported a “breakthrough” in November when it found that the common vitamin supplement, vitamin E acetate, had been found in 29 samples taken from patients.
As of January 14, 2020, there have been 60 deaths in 27 states and 2,668 hospitalizations or deaths from EVALI in all 50 states, D.C., Puerto Rico and the U.S. Virgin Islands, according to a report from the CDC. The number of EVALI cases has continued to decline. However, new cases and deaths are still being reported, according to the CDC.
In light of the EVALI outbreak, several states have imposed bans on vaping. Some of these bans have been tied up in the courts. At the federal level, the FDA’s handling of e-cigarette regulations is ongoing. A federal judge very recently tossed a vaping trade group’s bid to postpone a court-mandated deadline to begin enforcement action on vapes.
The information recently discovered regarding the illness, EVALI, can be used to
defend lawsuits for personal injures from vaping. Specifically, the recent discoveries can play a key role in defending against a manufacturer’s liability in a suit where the plaintiff has suffered from EVALI. The defense can point to the recent studies which indicate THC-containing products might instead be the cause of the illness. All individuals involved in vaping lawsuits should keep themselves apprised of the most recent studies to effectively arm themselves with information for defending claims.
 “Vaping By the Numbers.” Harriet Blair Rowan. California Healthline September 11, 2019.