JUUL is the maker of popular e-cigarettes. JUUL has been subjected to hundreds of lawsuits stemming from claims that it marketed its products to youth and that it mislabeled the nicotine content of its products. In 2019, JUUL filed a request to the Judicial Panel on Multidistrict Litigation to establish a Multidistrict Litigation (MDL). On October 2, 2019, the panel designated the District Court of Northern California to hear all cases emerging nationwide against JUUL on the claims.
Multidistrict litigation is a court practice in which a court combines similar tort cases that are not otherwise combined through class action certification. Some of the combined cases may themselves be certified class actions. In an MDL, the individual cases still proceed, but for the purposes of efficiency, the court selects several “bellwether” cases to act as exemplars for the cases overall. MDLs are often used in personal injury cases stemming from similar facts and claims but involving highly varying plaintiffs.
Why it Matters for Public Health
Youth use of e-cigarettes—also known as use of an electronic smoking device (ESD) or electronic nicotine device system (ENDS), and commonly called vaping—significantly increased in 2016–2017. Numerous providers of flavored e-liquids emerged with products that could work with e-cigarettes. The 2019–2020 rise in lung injuries resulting from e-cigarette use—known as E-cigarette or Vaping Product Use-Associated Lung Injury or “EVALI”—brought renewed attention to the youth vaping epidemic and may have spurred regulatory oversight.
The FDA deemed e-cigarettes and their accessories, including flavored e-liquids, to fall within the scope of their regulatory review in 2016, but it allowed products then on the market to remain available pending submission of PMTAs. Continued inaction on enforcement and postponement of the PMTA deadline led to public health groups filing suit against the FDA to compel regulatory action (see American Academy of Pediatrics v. FDA (2018)). In 2020, the FDA closed the window for all on-market products to have a PMTA submitted and began issuing authorization orders and MDOs a year later.
Beginning in 2017, youth consumption of e-cigarettes significantly increased, driven in part by JUUL’s marketing of flavored e-liquid pods, delivered through JUUL devices. JUUL’s devices were much more portable and concealable than other ESDs, and the company heavily used social media platforms to market its products. By mid-2019, JUUL was a defendant in ten lawsuits in five circuits, with plaintiffs ranging from individuals to school districts who argued 1) that JUUL had intentionally marketed its products to attract minors, 2) that JUUL’s marketing misrepresented or omitted information that its products were more potent and addictive than tobacco cigarettes, 3) that its products were defective and unreasonably dangerous because they were so attractive to minors, and 4) that JUUL had promoted nicotine addiction. JUUL filed a request to the Judicial Panel on Multidistrict Litigation to establish an MDL, which, on October 2, 2019, designated the District Court of Northern California to hear all cases emerging nationwide against JUUL. Since forming the MDL, hundreds of additional litigants have joined the original plaintiffs in suing JUUL.
Since the MDL was created in October of 2019, it has grown to include almost 3,000 cases, of which several hundred have been dismissed for various reasons, leaving over 2,000 cases by June 1, 2022. Judge William Orrick, presiding in the District Court of Northern California, established a complex apparatus for the parties to work through to determine the bellwether cases as well as to issue complaints and replies. Since 2019, JUUL and other defendants including JUUL’s parent company, Altria, have filed motions to dismiss against multiple cases, with some successes and some denials.
On February 2, 2021, Judge Orrick selected six cases to act as the initial “government entity” bellwethers in the MDL, including five school districts (San Francisco, Tucson, Palm Beach County, King County, and Goddard) and one city (Rochester, NH). On July 22, 2021, Judge Orrick granted in part and denied in part JUUL’s motions to dismiss the “personal injury” bellwether cases, thereby creating a cohort of eighteen such cases (Bagley, Barnes, Bain, Dramis, Edwards, Fairess, Faulds, Fish, Gregg, D.H., J.L.K., Keffer, Miles, Pesce, Rest, Westfaul, Widergren, and Wong). Five bellwether cases were initially scheduled for trial in 2022, with the first trial case (Bain, one of the personal injury cases) beginning on June 16, 2022.
Litigation Status (OPEN)
The JUUL MDL is a complicated amalgam of hundreds of cases, with individual settlements and dismissals occurring in tandem with proceedings to trial. The dispute overall remains ongoing, and no overarching decisions have been reached.
On September 6, 2022, JUUL settled with 34 states and territories for $438.5 million. On December 6, 2022, Juul settled with 10,000 plaintiffs and 5,000 parties for an undisclosed amount.