CHICAGO – Cities and private litigators are stepping up their fight in a growing crackdown against e-cigarette companies that critics say are marketing and selling their products to minors.
In the latest salvo, the city of Chicago is planning to file a lawsuit Tuesday against eight online e-cigarette retailers that it says it caught selling products to minors.
Los Angeles City Attorney Mike Feuer asked a Los Angeles County Superior Court last month for injunctions against three electronic cigarette companies he said sell vaping products without verifying a buyer’s age and market to young people on the social media.
Private attorneys, meanwhile, filed a class-action lawsuit in federal court in Philadelphia alleging that the popular e-cigarette company Juul markets on social media sites frequented by children. And plaintiffs in several states have filed a separate class action alleging that e-cigarettes have caused nicotine addiction among consumers as young as 14.
And at the federal level, the Food and Drug Administration is planning to announce stricter age-verification requirements for online sales of e-cigarettes this week. The FDA said it will also ban convenience store and gas station sales of sweet e-cigarette flavors.
The federal agency said in September it was giving the industry 60 days to submit plans to prevent youth vaping, or potentially see its product taken off the market.
Officials with Juul, the biggest e-cigarette seller, met recently with the FDA to discuss their marketing and age-verification protocols.
The company says it has worked with social media companies to remove more than 18,000 social media postings over the last six months that show their products being used in "unauthorized and youth-oriented manners."
Juul recently launched a secret shopper program that it says has visited 2,000 brick-and-mortar retailers to ensure that the product is not being sold to minors.
"Juul is intended for current adult smokers only," the company said in a statement. "We cannot be more emphatic on this point: No young person or non-nicotine user should ever try Juul. Underage use of Juul and any other vaping products is completely unacceptable to us and is directly opposed to our mission of eliminating cigarettes by offering existing adult smokers a true alternative."
Chicago Mayor Rahm Emanuel said he was moving forward with the litigation despite the FDA’s action. He said the federal agency has been too slow to act in stemming teen vaping.
“The FDA needs to get off their duff,” Emanuel told USA TODAY. “I’m not sure any of us know what they’re going to do. I’m not going to leave the health of our children to the FDA. We’ve seen a rise in e-cigarettes, and they’ve been twiddling their thumbs. This is under both (the Obama and Trump) administrations.”
Federal data published this month show that the percentage of cigarette smokers in the United States fell to 14 percent in 2017, the lowest level since records have been kept.
But e-cigarette use – including among youth too young to do it legally – is on the rise. FDA Commissioner Scott Gottlieb has called teen vaping an “epidemic.”
More than 2 million middle school, high school and college students use the battery-powered devices to heat liquid-based nicotine into an inhalable vapor.
E-cigarettes are by far the most popular tobacco product among teens: Nearly 12 percent of high school students and 3 percent of middle school students used the device in the past 30 days, according to the 2017 National Youth Tobacco Survey.
The eight online retailers that Chicago alleges have sold to minors are ELiquid Depot, Kandypens Inc., Major League Vaping, Mig Vapor, Sea100, Sex Vapor, Suorin USA and Vista Vapors.
The companies named as defendants in the pending lawsuit did not respond to requests for comment.
The industry says e-cigarettes are for helping adults quit smoking.
Maggie Gowen, executive director of the Global Vaping Standards Association, said members of the industry group “fully support online age verification.”
“It is imperative that we keep these products out of the hands of our youth,” she said.
The City of Los Angeles alleged in one of its two lawsuits against e-cigarette companies last month that Kandypens fails to use readily available "age gating" technology that would restrict social media advertisements from reaching minors.
The company also fails to include federally mandated health warnings about the addictiveness of nicotine on any of its advertisements, Los Angles claimed in the lawsuit.
"Underage vaping is an emerging public health epidemic, and luring kids to use dangerous and addictive vaping products …has got to stop," says Feuer, the Los Angeles city attorney. "Kids shouldn’t have access to these products at all."
Emanuel said that Chicago has made significant strides in reducing teen tobacco use in the city: It has fallen from 13.6 percent in 2011 to 6 percent today.
Still, Emanuel said, city educators say they increasingly catch students sneaking vaping pens into schools.
In addition to the lawsuit, Chicago sent letters to 33 manufacturers and retailers of e-cigarettes and “e-juices” requesting documents related to the companies’ marketing practices, youth use prevention efforts, online and social media monitoring, product design and online product sales policies, as well as the public health effects of the companies’ products.
“They said this product is about quitting,” Emanuel said. “You don’t name a product after Froot Loops if you’re trying (to help people) quit. You don’t name a product after Jolly Rancher, you don’t name a product after sex, if you’re trying to quit. This was always about targeting, marketing and creating new addicts.”
Contributing: Jayne O'Donnell