A small group of West Virginia counties and schools are suing an e-cigarette powerhouse in hopes of slowing the trend of kids vaping.
The federal claim against San Francisco-based Juul relies on legal theories used to combat opioids. Charleston attorney Rusty Webb argues misleading advertising tactics and methods are driving increases in children vaping, creating a nuisance for local authorities.
“It’s an old law that’s been dusted off for a new purpose in the country,” Webb said. “Using the nuisance theory similar to what we did with opioid litigation, the argument is that Juul, the e-cigarette manufacturers, created a nuisance in these counties for the public, and now the county commissions and the boards of educations are stuck cleaning up the problem.”
Regulatory crackdowns, lawsuits and investigations into whether the manufacturer marketed to teens have buffeted Juul in recent years, resulting in the company’s valuation being slashed to $10 billion last year from $38 billion two years earlier.
Juul agreed in June to pay North Carolina $40 million to settle the state’s claim the manufacturer marketed its products to underage users.
Mercer, Greenbrier, Raleigh, Mineral and Gilmer counties along with a few school boards have signed on to the claim here. Webb hopes more will join.
“I really think 110 entities is better than a scattered number of boards of education or county commissions,” Webb said. “More entities means a better impact overall on the ability of [having] success and more money to be distributed.”
Kanawha County schools spokeswoman Briana Warner said officials there are aware of the litigation and “weighing options.”
Rather than seek damages, litigators are pursuing money to combat the problem, Webb said. Money could be split between schools and counties, with the latter focused on education, treatment and prevention, he said.
Electronic cigarettes emerged in the aftermath of the landmark 1998 settlement between major tobacco makers and the states over the health care costs of smoking. That deal sends tens of millions of dollars to West Virginia each year, but critics say the state invests little or nothing in prevention.
Webb vowed that wouldn’t be the case this time, pledging money from claims against Juul would go directly to efforts to stop nicotine and tobacco dependence.
That effort would go far in Greenbrier County, said Commissioner Tammy Tincher, who passed a resolution designating e-cigarettes a nuisance and voted in support of joining the federal suit.
She said she’s become accustomed in recent years to hearing stories from her husband, a public schoolteacher, about children vaping in school hallways, bathrooms and even classrooms.
“I’m seeing kids, certainly younger than 18, and they have this vaping paraphernalia – they’re getting it from somewhere. I know of families here that allow their kids to vape. They don’t think it’s a big deal,” Tincher said. “I think education — not just for the students but their families and everyone — it’s needed for this. We need to make sure people know vaping isn’t safe, it isn’t cool. It’s dangerous.”
Health experts say e-cigarettes likely are safer than traditional cigarettes, but smoking still is harmful. Because e-cigarettes are relatively new, so, too, is research on long-term side effects.
The federal Centers for Disease Control and Prevention describes youth e-cigarette use as a “serious public health concern” and warns of the dangers of young people using any product containing nicotine, which is highly addictive and potentially harmful to the developing adolescent brain.
Pulmonologist Tom Takubo, a Republican state senator representing Kanawha County, said he’s seen the impact, having treated children for vaping injuries and performed a double lung transplant on a 17-year-old.
Takubo said the glycerin in vape juice — which is added to a tank, where a metal coil heats the juice to be inhaled as vapor — leaves oil deposits in the user’s lungs that the immune system can’t clear.
“It’s like an oil slick on top of water. What happens with animals when they’re covered in oil in an oil spill, that’s sort of like what happens with the oxygen,” Takubo said. “It suffocates it. The oxygen can’t cross into the bloodstream.”
More than a third of high school students in West Virginia reported using e-cigarettes in 2019, a 150% increase from 2017, according to a report last year from the state Department of Health and Human Resources. Sixty percent reported trying e-cigarettes at least once. The share of frequent users – those smoking e-cigarettes 20 days or more a month – increased from 3.1% to 16.7%.
Use among middle schoolers also grew over the same span.
E-cigarettes do not contain tobacco, but the federal Food and Drug Administration classifies them as tobacco products.
Curbing their use is challenging, said Sen. Ron Stollings, D-Boone, a doctor who has worked on state initiatives. The Coalition for a Tobacco Free West Virginia and other groups have plans that could help if lawmakers would listen, he said.
“Unfortunately, this Legislature has not been very kind to public health in general, or wellness and prevention,” Stollings said. “[In recent sessions] they’ve flat-out accosted public health and health in general. That doesn’t leave me much faith that they’ll act responsibly with this.”
Stollings, Takubo and others last year proposed tapping state rainy day money to establish a tobacco cessation fund. The bill failed. Last week, a task force formed in 2020 recommended that lawmakers spend $16.5 million from interest on state rainy day money on treatment and cessation programs.
The state allocates just 6% of the amount the CDC recommends West Virginia spend on halting tobacco use, according to the American Lung Association’s 2021 State of Tobacco Control report. The state gets a failing grade from the report.
Last year, West Virginia restored partial funding — $890,000 — to the Division of Tobacco Prevention. West Virginia spends $1.6 million a year on tobacco cessation. The American Lung Association estimates the economic impact of smoking here at more than $1 billion.
Health care costs increase in areas with high rates of tobacco and nicotine use, which is another aspect of the nuisance they cause, Takubo said. That makes recruiting and retaining new businesses difficult.
Takubo has introduced legislation that would make it illegal to smoke in a car if minors are present. It was inspired by a patient who lost half her lung function partially due to her father smoking in the car when she was young. She put her head under the car seat, near the floor to avoid the smoke. If she complained, her father rolled up the windows, Takubo said.
Every year it’s been introduced, the bill has failed.
“The goal is a backhanded attempt to create some embarrassment at the situation. It would be a $25 [fine], nothing major, but once it’s known it’s illegal, against the law, people would eyeball other drivers they see smoking in the car,” Takubo said. “It could shame them out of the practice, protecting the kids who are present and lessening their exposure to the practice.”
Seeing adults and parents smoke makes children more likely to do it, Takubo said. He believes the most effective way to curb teen vaping and smoking is by getting kids involved in the effort.
“A parent, adults can stand there all day long and say it’s bad, tell them to stop, but until kids get involved and it becomes uncool, they’re going to do it,” Takubo said. “They’re going to have to be the ones to help figure this out, who apply social pressure and stop their friends from doing it. That’s going to change things.”