Minnesota is getting its day in court to prove Juul created a new generation of nicotine addicts.
In the first-of-its-kind trial against Juul and its former investor Altria Group, which starts Monday (Mar. 27) and is expected to last three weeks, the state will argue the e-cigarette maker unlawfully targeted young people with its products and got them addicted.
In December 2019, Minnesota attorney general Keith Ellison’s team became the first state prosecutor office to sue the San Francisco-based e-vaping company using the “public nuisance theory”—a flexible claim allowing businesses to be sued over allegedly creating societal harms from environmental spills to public health epidemics. The legal theory, which has driven multibillion-dollar settlements in the opioid industry, is being used against an e-vaping firm for the first time.
“There’s no doubt that, like opioids, the marketing and sales of Juul was a nuisance,” Ellison said in an interview with Bloomberg Law. “Juul basically copied the playbook of tobacco 25 years ago and replicated these deceptive, slick advertising moves.”
Charted: High schoolers smoking in Minnesota
A brief history of the expanding definition of “public nuisance” in law
Before the 1970s: Public nuisance largely addresses property and criminal law. But soon after, the vague language lends itself to be applied to a wider range of environmental and social problems.
1972: Public nuisance is included in a treatise issued by the American Law Institute. It is described as “an unreasonable interference with a right common to the general public … whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort, or the public convenience.”
80s, 90s, and 2000s: The more flexible interpretation of public nuisance brings lawsuits seeking damages for social issues such as pollution, lead paint, asbestos, and tobacco. A majority of public nuisance claims are dismissed because of an established precedent requiring a property nuisance and special injury to an individual beyond that of the general public, thus making the cases of large public health crises inapplicable.
2019: The public nuisance law is applied to Johnson & Johnson. The pharma giant is ordered to pay $572 million in damages for their part in fueling the nation’s opioid crisis by marketing potentially harmful drugs. The law is at the forefront of other opioid litigation, too.
2022: City and state attorneys bring public nuisance investigations or suits alleging automakers Kia and Hyundai are responsible for fallout from a vehicle-stealing crime wave because of the poor anti-theft protections on older car models.
2023: School districts apply public nuisance theories to suits brought against social media companies for fueling a youth mental health crisis.
Quotable: A start of public nuisance cases against e-cigarette companies
“Many states have turned to public nuisance for what they consider to be major public crises over the last few years because it allows the state to be a plaintiff and address public health concerns or public welfare concerns in a way that an individual tort suit brought by a specific plaintiff doesn’t. This allows states to express in legal language their sense that these are public harms of social ills in a way that very few other legal avenues allow.”-University of Virginia Law School professor Leslie Kendrick, quoted by Bloomberg law.
One big number: Juul’s paying the price
$438.5 million: The settlement deal Connecticut attorney general William Tong led for 34 states and territories to get Juul to “end youth marketing and send millions of dollars to programs nationwide to drive down tobacco use.” The company “relentlessly marketed vaping products to underage youth, manipulated their chemical composition to be palatable to inexperienced users, employed an inadequate age verification process, and misled consumers about the nicotine content and addictiveness of its products,” he said. Minnesota was not among these states.
Explained: The relationship between Juul and Altria
Juul was partly owned by Virginia-based Altria until earlier this month, when the largest cigarette maker in the US swapped its ownership stake for intellectual property rights. Altria took charge of a non-exclusive, irrevocable global license to certain of Juul’s heated tobacco intellectual property, while trying to distance itself from “significant regulatory and legal challenges and uncertainties,” Altria CEO Billy Gifford said.
Altria’s $12.8 billion investment from 2018 shrunk to $250 million by the end of 2022. But Minnesota will hold the company accountable because the investment helped Juul’s sales grow by giving shelf space and providing lists of smokers.
One more thing: Juul’s counterargument
Juul is pointing the finger back at Minnesota, saying the state has for years reaped billions of dollars from tobacco settlements and taxes over the last decade but not allocated funds to fight the rise in youth vaping until 2021. According to the company, the failure to mitigate youth vaping problems falls partially on state regulators.
“The State collected over $840 million in tobacco-related settlements and taxes in 2017, and another $750 million in 2018,” Juul said in a November motion. “Yet both years, the State spent less than 1% of that money on prevention and cessation efforts. In other words, the State consistently collected a hundred times as much in tobacco taxes and settlement fees than it spent on tobacco-control measures.”
😮💨 Juul’s going up in smoke. Is Puff Bar next?
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