Category: Litigation

New York City Files Suit for Illegal Disposable Sales

Credit: A Billion Lives
New York City Mayor Eric Adams and New York City Corporation Counsel Sylvia O. Hinds-Radix announced that the City of New York has filed a lawsuit against 11 wholesalers for their part in the illegal sale of flavored disposable e-cigarettes.
The 11 defendants – located in Brooklyn, Queens, Long Island, and upstate New York – are alleged to have distributed, and continue to distribute, flavored disposable e-cigarettes – such as Strawberry Colada, Mellow Mint, Blueberry Energize, and Frozen Creamsicle – to retail vape and smoke shops, convenience stores, and directly to consumers over the internet, in violation of federal, New York state, and New York City law, according to media reports.
The lawsuit seeks to block the defendants from further selling the items and seeks damages and penalties under state and city statutes. It is a companion to the city’s pending 2023 federal lawsuit, in which two defendants are already subject to court orders barring their sales and shipments of flavored e-cigarettes into the city.
“Part of protecting public safety means protecting the health of New Yorkers, including our most vulnerable – our children – and this administration is committed to enforcing the law when it comes to illegal vape sales,” said Adams. “This lawsuit will help hold 11 wholesalers accountable for their part in the illegal sale of flavored disposable e-cigarettes at a time when nicotine addiction among middle and high school youth is exploding. We will not stand by and allow this greedy, harmful, and openly illegal behavior to continue.”
April 5, 2024
Federal Judge Tosses ‘Optimum’ Case for Last Time
Credit: Carolyn Franks
It’s over. A New Jersey federal judge has thrown out a vape company’s trademark suit alleging Duracell US Operations Inc. infringed on its “Optimum” brand name trademark.
What A Smoke owns federal “Optimum” trademarks covering e-cigarette batteries and other products such as atomizers, tanks, and refill cartridges.
The judge stated there was “no evidence” of any “potential or actual confusion” between the two products, according to Law360.
What A Smoke filed suit asking for Duracell’s applications to register two federal “Optimum” trademarks to be rejected based on likely confusion with What A Smoke’s trademarks.
The suit was initially filed in October 2020.
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April 3, 2024
Federal Judge Gives Final OK in Altria, Juul Class Action

A federal judge approved the final part of a class action settlement with the e-cigarette company Juul Labs and its parent company Altria, bringing the settlement total to just over $300 million.
In 2018, the plaintiffs charged Juul Labs with misleading the public about the addictiveness of Juul and the risk of the e-cigarettes and its nicotine cartridges.
The plaintiffs also said Juul had targeted teenagers with candy-flavored Juul pods and “multimillion-dollar ad campaigns and social media blitzes using alluring imagery.”
The case survived a number of hurdles: The judge denied multiple motions to dismiss the suit and agreed to certify four different classes of plaintiffs (a nationwide class, a nationwide youth class, a California class and a California youth class).
In January, the judge gave preliminary approval to a $255 million settlement between Juul Labs and the plaintiffs, according to Courthouse news. Friday’s ruling grants approval to Altria’s payment of $45,531,250. The sides have yet to reach an agreement on attorneys fees.
“Court finds that this monetary recovery is fair, reasonable, and adequate given the risks of proceeding to trial and the maximum recovery potentially available to Settlement Class Members if the Class Representatives had prevailed at trial,” wrote U.S. District Judge William Orrick in his order.
Last year, Juul agreed to pay six states $462 million to settle claims that it had marketed its vaping products to teenagers. The year before that, it agreed to pay $438.5 million to 33 different states and Puerto Rico.
Altria Group exchanged its entire investment in Juul Labs in 2023 for a non-exclusive, irrevocable global license to certain of Juul’s heated tobacco intellectual property.
March 15, 2024
Italy Fines BAT for ‘Misleading’ Heated-Tobacco Ads

Photo: BAT
BAT’s Italian division has been fined €6 million ($6.4 million) for “misleading advertising of a heated-tobacco product,” according to Barron’s. Amazon was fined €1 million for the same reason.
According to the AGCM watchdog, BAT and Amazon advertised the Glo Hyper X2 and Glo Hyper Air devices without making “information about the tobacco/nicotine consumption connected to the use of these devices and the prohibition of their sale to minors” clear.
The products were marketed “as simple electronic devices and mere design objects,” the watchdog said.
“This is seriously misleading conduct, which induces the customer to buy a product that poses health risks and is banned for minors,” the authority said.
An investigation into the marketing of the heated-tobacco products began in April 2023.
BAT plans to appeal the fine, according to Bloomberg.
“We are clear that our products are for adults only, and we adhere to the highest standards of conduct to prevent underage use of any nicotine product,” a BAT Italia spokesperson said. “We cooperated with Italian authorities and implemented all suggested changes to our marketing immediately. While we acknowledge the decision, we plan to appeal.”
February 14, 2024
PMI and BAT Settle Patent Infringement Disputes

Photo: ASDF
Philip Morris International and British American Tobacco have settled their ongoing intellectual property disputes relating to heated tobacco and vapor products.
The cigarette makers had been fighting a multi-front patent battle. BAT, which makes Vuse vapes and Glo heated tobacco devices, was ordered to pay PMI millions of dollars after losing one case, while PMI has been blocked from importing its flagship heated tobacco device IQOS into the United States as part of another.
The settlement includes non-monetary provisions between PMI and BAT that resolve all ongoing global patent infringement litigation, encompassing all related injunctions and exclusion orders, and prevents future claims against current heated tobacco and vapor products. The settlement also allows each party to innovate and introduce product iterations.
“We are pleased that this matter has been resolved to the mutual satisfaction of both parties,” said PMI CEO Jacek Olczak in a statement. “There is a clear and growing global desire from adults who smoke to choose from a range of smoke-free products, and we believe continued reduced-risk category innovation can accelerate declines in the harms associated with smoking to the benefit of consumers and public health at large as we continue PMI’s journey to end the sale of cigarettes.”
“This agreement is an important step forward for BAT and all our stakeholders,” said BAT CEO Tadeu Marroco in a statement. “Having already built two £1 billion [$1.28 billion] brands in Vuse and Glo, the potential for their continued impact on tobacco harm reduction is clear. I am delighted that this settlement will allow BAT to focus on developing innovative solutions that provide adult consumers with a greater choice of reduced risk products in support of our ‘A Better Tomorrow’ purpose. By doing so, we will help build a smokeless world for the benefit of consumers, investors and society as a whole.”
February 2, 2024
Pax Labs Files Patent Lawsuit Against Stiizy, ALD
Credit: Stiizy
Pax Labs Inc. has filed a lawsuit against the vape brand Stiiizy Inc. and its manufacturer ALD Group Ltd. for allegedly infringing four patents with vape pens they make and sell.
Stiiizy and Hong Kong-based ALD make vaporizing devices, including a cartridge and battery, that utilize methods similar to Pax Labs’ patents, according to separate complaints filed Monday in the US District Court for the Central District of California, according to media reports.
Pax Labs said the companies infringed U.S. Patent Nos. 11,369,756, 11,369,757, 11,766,527, and 11,759,580, which deal with methods for leak-resistant vaporizer cartridges and apparatuses.
The patents are all labeled as a “Leak-resistant vaporizer device.”
January 31, 2024
PMI Gets Appeals Court Support for Suit Dismissal

The United States Court of Appeals for the 2nd Circuit on Dec. 26, 2023, affirmed a district court’s dismissal of a putative class action asserting claims against Philip Morris International that the company made false or misleading statements regarding both the scientific studies it conducted in support of an application to the Food and Drug Administration and the outlook for the company’s sales growth in Japanese markets, according to Lexology.
The district court held that the plaintiffs failed to adequately prove falsity or scienter. The 2nd Circuit affirmed the dismissal, holding that the plaintiffs failed to adequately plead falsity.
The court decided two questions of first impression in the 2nd Circuit, holding a securities fraud defendant’s statement that its scientific studies comply with a methodological standard that is published and internationally recognized, but stated in general and inherently subjective terms, is properly analyzed as a statement of opinion rather than a statement of fact, and holding that, whereas a securities fraud defendant’s statement expresses an interpretation of scientific data that is ultimately endorsed by the FDA, such a statement is per se “reasonable” (i.e., supported by “meaningful inquiry”) as a matter of law.
The plaintiffs alleged that PMI made misrepresentations in securities filings and public statements about clinical studies it conducted in support of an application to the FDA to sell IQOS in the U.S. and market IQOS as reduced risk. The plaintiffs also alleged that PMI made misleading statements about its growth projections in Japan regarding IQOS. The district court found that none of the challenged statements were false or misleading because all the challenged statements were true, inactionable puffery or inactionable statements of opinion. Furthermore, the district court found that the plaintiffs failed to establish the required strong inference of scienter, either by alleging facts showing motive and opportunity to commit fraud or strong circumstantial evidence of conscious misbehavior or recklessness. Accordingly, the district court granted the defendants’ motion to dismiss the plaintiffs’ first amended complaint and denied the plaintiffs’ motion for reconsideration. After the district court dismissed the plaintiffs’ second amended complaint, this time with prejudice, the plaintiffs appealed.
January 12, 2024
Court Rules FDA Sent Vapor Makers on ‘Wild Goose Chase’

Image: BCFC
Two e-liquid companies will be able to resubmit their marketing applications to the U.S. Food and Drug Administration following a court ruling, reports Bloomberg Law.
On Jan. 3, the U.S. Court of Appeals for the Fifth Circuit ruled that the FDA acted “arbitrarily and capriciously” in rejecting the premarket tobacco product applications (PMTA) of Wages and White Lion Investments, doing business as Triton Distribution, and Vapetasia for approval to sell their products in the United States.
The 9-5 decision by the New Orleans-based 5th U.S. Circuit reversed a July 2022 decision by a three-judge panel of that court.
The agency “sent manufacturers of flavored e-cigarette products on a wild goose chase,” telling them what would be needed to approve their products, and then denying all applications, the court said in an opinion by Judge Andrew S. Oldham. The FDA “never gave petitioners fair notice that they needed to conduct long-term studies on their specific flavored products,” Oldham wrote.
In a dissenting opinion, Judge Catharina Haynes stated that the agency “properly fulfilled its statutory mandate by considering the relevant portions of Petitioners’ PMTAs and coming to a reasonable conclusion that marketing Petitioners’ products is not appropriate for public health.”
Oldham stated that the manufacturers dutifully spent untold millions “conforming their behavior and their applications to FDA’s say-so.”
“Then, months after receiving hundreds of thousands of applications predicated on its instructions, FDA turned around, pretended it never gave anyone any instructions about anything, imposed new testing requirements without any notice, and denied all one million flavored e-cigarette applications for failing to predict the agency’s volte face. Worse, after telling manufacturers that their marketing plans were ‘critical’ to their applications, FDA candidly admitted that it did not read a single word of the one million plans.”
In an X post, Michael Siegel, a professor at Boston University School of Public Health, stated that the ruling “exposed” the FDA’s wrongful rejection of applications for flavored vapes, ultimately resulting in a “win for public health.”
Eric Heyer, a lawyer for e-liquid makers Triton Distribution and Vapetasia LLC, said he was pleased with the ruling and hoped it would lead the FDA to make “a significant course correction by communicating with specificity” what companies must do to get approval.
“No principle is more important when considering how the unelected administrators of the Fourth Branch of Government treat the American people,” Oldham wrote, apparently likening executive branch agencies such as the FDA to a separate branch of government. “And FDA’s regulatory switcheroos in this case bear no resemblance to square corners.”
It is expected that the FDA will seek a review of the decision by the Supreme Court of the United States, however, the justice department hasn’t made an official announcement.
January 3, 2024
California Files Lawsuit Against 2 Online Vape Shops

Credit: Niro World
California has filed lawsuits against two online retailers of vaping products.
Attorney General Rob Bonta alleges that the California companies violated state and federal laws governing tobacco sales and the state’s Unfair Competition Law, in part by failing to properly verify the ages of consumers before selling them tobacco products and by selling tobacco products through remote sales transactions.
The complaints against the company and its CEO (together, “Ejuicesteals”) as well as E-Juice Vapor, Inc. along with an affiliated entity and individuals (collectively, “E-Juice Vapor”) allege multiple violations of California tobacco sale laws, including failing to comply with age verification requirements and with various shipping and delivery requirements, according to JD Supra.
The AG’s office requests injunctive and equitable relief, civil penalties, damages, and costs.
December 28, 2023
PMI Prevails in Investors’ Lawsuit Over IQOS Studies

Photo: fotofabrika
A U.S. appeals court on Dec. 26 dismissed a securities fraud class action brought by shareholders against Philip Morris International, reports Bloomberg Law.
Investors accused the tobacco manufacturer of misleading them about the methods and results of IQOS clinical studies presented to the U.S. Food and Drug Administration. PMI sought the approval so that its former parent company, Altria Group, could sell the device within the U.S.
Investors also targeted company statements about projected IQOS sales in Japan, the only country at that time where PMI sold the line of products nationwide.
The U.S. Court of Appeals for the Second Circuit ruled that statements by PMI and its executives that the IQOS studies were “rigorous,” “the best science,” and “very advanced” were inactionable puffery. The court rejected the investors’ argument that such statements could be proven true or false.
Optimistic remarks about sales performance in Japan, meanwhile, were allowable forward-looking statements, the court ruled.
December 27, 2023