Category: Litigation

Mexico’s Supreme Court Says Vape Ban is Illegal

The Supreme Court of Justice of the Nation (Credit: Fernando)
Mexico’s Supreme Court of Justice has ruled that the presidential decree banning the sale of e-cigarettes is unconstitutional.
The court’s Second Chamber ruled by three votes in favor that the decree is contrary to the right to freedom of commerce.
The ruling only permits those retailers who were parties to the case to sell e-cigarettes.
In an en banc decision, the full Supreme Court of Justice of Mexico found the interpretation of Article 16(VI) banning e-cigarettes unconstitutional; however, this ruling does not automatically toss out the ban on e-cigarettes under Art. 16(VI).
Instead, if a retailer wants to sell e-cigarettes, he/she must bring a court case to declare the unconstitutionality of the ban in his/her specific case.
Thus, for now, e-cigarettes remain prohibited.
Alberto Gómez Hernández, policy manager of the World Vapers’ Alliance, said he welcomed the decision of Mexico’s High court, adding that the decree violates the right to freedom of trade of the companies, but also the right to health and the free development of the personality of Mexican adults. “Mexicans should be free to decide how they consume nicotine,” he said in an emailed release.
The declaration of unconstitutionality was carried out in an amparo lawsuit – a type of lawsuit in Mexico through which a company can seek legal protection or permission not to abide by regulation that violates its rights.
The general ban will stay in place since the ruling applies only to that specific case and business, yet it shows that even Mexico’s highest court agrees that a ban on vaping products is unconstitutional.
“Although the ruling does not establish jurisprudence, we hope that the government or the judiciary will reverse the ban soon,” said Gomez. “The ban has failed, it has aggravated the public health problem of smoking in Mexico and has created a huge black market controlled by mafias.
“Mexico needs to abandon the ban and adopt a strategy that includes the use of less harmful nicotine products as a smoking cessation tool. It should follow the example of Sweden, which is about to become the first smoke-free country, and the UK, which promotes the use of vapes to quit smoking.”
December 11, 2023
North Carolina Gets $7.8 Million More From Juul Labs

Credit: Adobe
North Carolina will receive an additional $7.8 million from Juul as part of his first-in-the-nation agreement to hold the e-cigarette maker accountable for its role in marketing and selling e-cigarettes to young people.
In all, the state will receive $47.8 million, said Attorney General Josh Stein in a release. North Carolina has settled its original lawsuit with Juul Labs for $40 million.
“The vaping epidemic is far from over, and these additional funds will help us keep more kids healthy,” said Stein. “Vaping is dangerous to kids’ health, and we must continue to do everything in our power to keep them nicotine-free.”
Stein was the first attorney general in the nation to file a suit against Juul Labs for allegedly sparking a vaping epidemic among teenagers.
His agreement required the company to make far-reaching changes to how Juul Labs conducts business, including not marketing to people under 21, not using social media advertising, and verifying the ages of people who buy its products.
The money from the settlement is being used by the North Carolina Department of Health and Human Services to prevent e-cigarette addiction, help those who are addicted quit, and fund important e-cigarette research.
As part of Attorney General Stein’s agreement, Juul Labs must also make public a large number of documents it produced in the lawsuit.
The first batch of documents from that document depository will be available through a partnership between the University of North Carolina and the University of California, San Francisco in early 2024.
The documents reportedly will shed light on Juul’s marketing and research and will help prevent other companies from using the same playbook.
December 8, 2023
San Francisco Files Lawsuits Against 3 Vapor Makers

San Francisco City Hall (Credit: Alonso Reyes)
A new lawsuit filed by San Francisco City Attorney David Chiu’s office accuses three online retailers, The Finest E-Liquid, the Vape Society and DaSmokey, of illegally selling flavored vape products in the city.
According to a complaint filed at San Francisco Superior Court Tuesday, city investigators purchased products from the three sellers that included a container of “The Finest Vanilla Almond Custard e-liquid,” a disposable vape called “Flum Pebble 6000 Puff, Matcha flavor” and packages of “Apple Pearadise” and “Straw Melon Sour Belts” e-liquid, among others.
Moreover, the city alleges that the companies violated a state regulation, codified in California’s Stop Tobacco Access to Kids Enforcement (STAKE) Act, that requires online sellers to call the purchaser before shipping tobacco products and use certain language on the package—both safeguards intended to prevent minors from buying the products online.
“We are bringing our lawsuit to send a clear message to tobacco retailers that selling their products will not be tolerated in San Francisco,” Chiu said. “We’re bringing this lawsuit to protect the public, especially youth, from the health risks of tobacco products.”
Sales of flavored tobacco products have been banned in San Francisco since 2018, when voters approved Proposition E, which prohibited the sale of such products in response to the rising popularity of youth vaping.
In 2019, the Board of Supervisors unanimously passed a ban on the sales of most electronic cigarettes in the city over the protests of Juul Labs, which was then headquartered in San Francisco and a major producer of vapes.
That same year, Juul sponsored a ballot measure that would have reauthorized the sale of e-cigarettes—but it was overwhelmingly defeated.
Now, Chiu’s office believes that the three online sellers are flouting bans and regulations of e-cigarette products by continuing to ship flavored vaping supplies to buyers in San Francisco.
The alleged sales are happening despite broad restrictions on flavored vape products both locally and elsewhere, according to media reports. The websites gave no indication that the products could not be shipped to San Francisco and the products were shipped in short order to an address in the city, the complaint states.
December 7, 2023
Vaping Ban Suit in Panama to be Heard by High Court

Credit: Evgenia
The Supreme Court of Panama has decided to hear a lawsuit challenging the constitutionality of the country’s ban on e-cigarettes and heated tobacco products.
In early August, the Panamanian Tobacco Harm Reduction Association (ARDTP) filed a lawsuit with the Supreme Court, arguing that Law No. 315, which prohibits the use, sale, and import of e-cigarettes and heated tobacco in the country, is unconstitutional and should be repealed.
The Panama Association for Tobacco Damage Reduction (ARDTP) had its appeal case advanced by the Supreme Court on Sept. 21 following a lawsuit, according to media reports.
If the Supreme Court deems the unconstitutional statement valid, the 315 bill will return to the legislative body for modifications.
Once the bill is amended, it will be resubmitted to the Supreme Court to confirm its constitutionality. A proposed new law is being drafted to replace the current 315 bill, thereby supporting provisions based on “risk.”
Panama is one of several Latin American countries, including Mexico, Argentina, and Venezuela, that have implemented strict legislation since 2022 to restrict the use, sale, and import/export of vaping products.
Many harm reduction advocates argue that the enactment of such legislation has resulted in the creation of a black market for safer nicotine products within their respective countries.
The World Vapers Alliance (WVA) states that Panama’s Supreme Court’s decision to hear this lawsuit is a positive first step.
November 8, 2023
Lawsuit Pushes Pause on Louisiana Law Banning Vapes

Credit: DedMityay
The Louisiana Convenience and Vape Store Association filed a temporary restraining order and permanent injunction regarding a law that would remove unapproved vapor products from the market.
The law, which also approved increasing taxes on vaping products, requires retailers to register vape products with the Louisiana Alcohol and Tobacco Control in the V.A.P.E. Directory by Nov. 1.
Two state agency heads are listed as defendants in the lawsuit filed in East Baton Rouge Parish — ATC Commissioner Ernest Legier and Louisiana Department of Revenue Secretary Kevin Richard, according to media reports.
“The Louisiana Department of Revenue administers state tax laws as passed by the legislature and signed by the Governor,” said Richard in a statement Thursday. “Act 414 of the 2023 Regular Session of the Louisiana Legislature is no exception. The Department will respect the judicial process and will reevaluate collection efforts and enforcement once this matter is resolved.”
Court records show a hearing is set for Nov. 8.
November 3, 2023
Vape Companies in Legal Brouhaha Over Endorsements

Credit: Kritdanai
The two South Florida Vape product companies are engaged in a bitter legal brouhaha over celebrity endorsements with millions of dollars at stake. Alejandro Brito, the attorney representing HQDTech USA LLC and Dummy Vapes LLC as plaintiff’s in a lawsuit against Broward County-based, SYB Entertainments Group LLC, QR Joy Inc. and QR Joy Fume LLC., claims that the rapper Tekashi 6ix9ine, whose birth name is Daniel Hernandez, entered into an exclusive contract with the plaintiff to endorse their vaping products. Brito called the endorsement contract with the famous rapper their “lightning in a bottle.”
“I’ve seen the numbers and this particular individual moves the market and was compensated very handsomely as a result of this exclusive relationship between my client and him, and the other competitors took notice,” said Alejandro Brito, attorney for HQDTech USA LLC and Dummy Vapes LLC as plaintiff’s in a lawsuit against Broward County-based, SYB Entertainments Group LLC, QR Joy Inc. and QR Joy Fume LLC.
The fighting began when SYB allegedly learned that Hernandez had entered an exclusive contract with the plaintiff, HQD, to endorse their vaping products. According to Brito, the other competitors (SYB) tried to get Hernandez to endorse their vaping products instead. They even allegedly offered Hernandez $1 million to sign with SYB, which Hernandez declined.
However, SYB then later signed a $250,000 agreement with Hernandez’s girlfriend Yailin la Más Viral who has 11 million Instagram followers. The complaint further alleges that these actions were taken by SYB to use la Más Viral’s relationship with Hernandez to take advantage of Hernandez’s and the plaintiff’s vaping product’s growing popularity.
Joshua Kon, an attorney for Stok, Kon and Braverman, which is defending Fume in the lawsuit, called the case “lukewarm,” adding that HQDTech and Dummy Vapes are attempting to illegally use and take advantage of the popularity of Fume vaping products.
“HQDTech, Dummy Vapes and its principals perpetrated an elaborate fraud on Daniel Hernandez, aka Tekashi 6ix9ine, as well as the vape consumer marketplace,” Kon said. “HQD and Dummy Vapes lied to everyone and encroached on the ‘Fume’ brand’s commanding market share, flouting Federal and Florida laws in the process.
“As a consequence, QR Joy, QR Fume and SYB Entertainment Group intend to immediately file a motion to dismiss and a substantial counterclaim to rectify these wrongdoings and hold HQD and Dummy Vapes accountable for their unlawful profiteering.”
Motion for injunction
The plaintiff’s attorney immediately filed an emergency motion for temporary and preliminary injunction. “[This was] to stop the defendants from continuing to harm the plaintiffs’ business, which has been scheduled for hearing on Nov. 16, 2023,” Brito said.
The complaint also alleges the SYB was behind a letter attempting to gain confidential documents from the plaintiffs, according to a story on law.com.
“Rather than just play it straight and wait for the contract to expire or negotiate with our clients for a buyout, [Fume] had gone the route of trying to be deceptive in forming a new company, claiming that company to be a management company for Mr. Hernandez, and asking us to produce our agreements with Mr. Hernandez under the guise of this new entity. That’s really deceptive,” Brito said.
Risks that ‘go far beyond’
At the start of this year, John Uustal, a lawyer based in Fort Lauderdale and the founding partner of Kelley|Uustal, represented rapper Flo Rida in a lawsuit against Celsius Inc., the company behind the well-known energy drink. The jury ultimately awarded Flo Rida an $82.6 million dollar judgment in compensation for breach of contract.
While not a part of the Fume lawsuit, Uustal said cases involving celebrity endorsements are “almost always insanely complicated, because there is so much more going on” than just the legal issues.
“Sometimes celebrities get taken advantage of because it’s not worth it for them to enforce their rights legally,” Uustal said. “And when they do, there are real risks that go far beyond the litigation because the litigation affects reputation.
“In a case like this, where the celebrity is not actually a litigant, the parties must still consider the ramifications of the litigation on the relationship with the celebrity.”
Uustal said this dispute does not currently have a realistic and accurate way to value the injury to HQD if the company wins on liability.
“In a case I recently went to trial on, the measure of damages was 750,000 shares of stock, which is what the contract called for if certain benchmarks were met,” Uustal said. “That’s a lot simpler than measuring how the alleged conduct affected a business,” referring to the Flo Rida win.
In the HQD v. Fume vaping case, Brito—who also represents former President Donald Trump in his South Florida lawsuit against his former attorney Michael Cohen for attorney-client privilege violations—says his vape company clients are looking for substantial damages, “which has been caused and will continue to be caused by virtue of the usurpation of sales, as well as confusion in the marketplace.”
October 30, 2023
FDA Defeats Logic in Menthol Marketing Order Suit

The U.S. Food and Drug Administration has defeated Logic Technology Development after the e-cigarette manufacturer asked the courts to block the regulatory agency’s market ban on Logic’s menthol-flavored e-cigarette products, according to media reports.
Logic filed a petition for review in the U.S. Court of Appeals for the Third Circuit, alleging the FDA violated the Administrative Procedure Act when it denied Logic’s premarket tobacco product application to market its menthol-flavored vaping products. The court denied that petition Thursday after concluding the FDA “based decisions on scientific judgments.”
Logic alleged it was arbitrary and capricious for the FDA to apply the same regulatory framework to menthol that it used to remove fruit- and dessert-flavored e-cigarettes from commerce. The Third Circuit Court entered a stay on the FDA’s marketing denial orders (MDOs) in December 2022. The MDOs were the FDA’s first-ever MDOs directed at menthol e-cigarette products.
October 20, 2023
Altria’s NJOY Sues 34 Disposable Vape Companies

Credit: Kristina Blokhin
Altria Group today said that its e-cigarette subsidiary NJOY, LLC has filed lawsuits against 34 foreign and domestic manufacturers, distributors and online retailers of illicit disposable vaping products. If successful, the lawsuit could potentially decimate the flavored disposable vaping market.
Altria joins its largest U.S. competitor, BAT-owned RJ Reynolds, in using the courts to remove unauthorized vaping products (and their competition) from the U.S. market.
On Oct.13, Reynolds filed a U.S. International Trade Commission (ITC) complaint charging multiple manufacturers, distributors, and retailers of several popular disposable vaping devices with unfair importation. It is one of several recent actions Reynolds has made to remove its competitor’s vaping products from store shelves. Several legal scholars have told Vapor Voice that if the ITC agrees with Reynolds, all flavored disposable vaping devices without an FDA marketing authorization could be stopped at the border and prevented from entering the U.S. market.
The NJOY suit alleges that the disposable products are unlawfully marketed and sold in the State of California and other U.S. states in violation of California’s flavor ban law and federal marketing rules.
The products are illegal under federal law and subject to action by the U.S. Food and Drug Administration and illegally compete against companies that comply with state and federal laws, according to an Altria press release.
The suit seeks a nationwide injunction against the import, marketing and sale of these illicit products and significant compensatory and punitive damages. If successful the lawsuit could lead to the removal of all disposable flavored vaping products without an FDA marketing order from the market.
“These companies knowingly violate federal and state laws and need to be held accountable,” said Murray Garnick, Altria’s Executive Vice President and General Counsel. “Today there are two markets – one for those who play by the rules and one for those who flagrantly ignore them. We are taking this action because the current state of the illicit e-vapor market is intolerable, and we must see more action from FDA and others.”
The litigation, filed in the United States District Court for the Central District of California, is brought under four claims: unfair competition, false advertising, false advertising in violation of the Lanham Act and violation of the Prevent All Cigarette Trafficking Act of 2009.
Named Defendants in the suit manufacture and distribute illicit disposable e-vapor products which include, but are not limited to, brands including Breeze, Elf Bar, EB, EB Create, Esco Bar, Flum, Juice Box, Lava Plus, Loon, Lost Mary, Mr. Fog and Puff Bar (many of these companies were also named in the Reynolds suit). Domestic Defendants include companies doing business in Arizona, California, Delaware, Florida, Michigan, Minnesota, New Jersey, New York and Texas. Foreign Defendants are all based in China.
None of the Defendants has received premarket tobacco product authorization (PMTA) approval from the FDA. In many instances, Defendants also have not filed PMTA applications. Several of these Defendants have already received warning letters from the FDA stating that their products are adulterated and misbranded and cannot be sold without marketing authorization.
Additionally, some of these Defendants are subject to an FDA-ordered import alert authorizing U.S. Customs and Border agents to seize their products. NJOY may add additional manufacturers, distributors and retailers to this complaint and will consider further litigation activity, the release states.
Despite a ban on the sale of flavored tobacco products that went into effect in December 2022, flavored vapor products make up more than 97 percent of the California market according to a recent study commissioned by Altria. Conducted by an independent research firm WSPM Group, “the study collected 15,000 empty discarded cigarette packs and 4,529 e-vapor product packages” from May 1st through June 28th in 10 California cities.
October 19, 2023
U.S. Supreme Court Declines to Hear Avail Vapor Case

Credit: Avail Vapor
The U.S. Supreme Court declined Tuesday to hear arguments against the Food and Drug Administration’s regulatory authorization process.
The denial order comes in one of several cases questioning the FDA’s oversight of the vaping industry.
The US Court of Appeals for the Fourth Circuit sided with the FDA, finding that Avail hadn’t shown that its products had benefits for adults that offset the risk to youth.
The case is connected to the FDA’s 2021 determination to deny all of Avail Vapor’s requests to approve fruit and dessert-flavored e-cigarettes. The company claimed that the agency made the application process intentionally difficult, which led to mass denials of new product submissions.
In a Supreme Court brief filed Aug. 3, the company claimed the FDA failed to inform companies of a change in policy that would only allow for approval if the applications included data from studies conducted over time comparing the effectiveness of the multi-flavored products to that of tobacco flavored ones as an aid in adult smoking cessation.
Avail Vapor had asked the U.S. Supreme Court to examine a lower court’s refusal to review a marketing denial order issued by the FDA to Avail products.
In its petition, known as a Writ of Certiorari, Avail asked the Supreme Court to consider the lower court’s legal reasoning and decision.
Among other things, Avail argues in its petition that the FDA’s decision making was arbitrary and capricious; that another court sided with a different petitioner against the FDA on the same basic arguments; and that the case is significant not only for Avail but for the entire industry and its customers.
October 10, 2023
Florida Sues Juul Labs for Marketing to Youth

Credit: Insurance Journal
Florida’s attorney general, Ashley Moody, has filed a lawsuit against Juul Labs, alleging that the company improperly marketed its products to children and offered misleading information about its products’ nicotine content, reports WUSF.
The suit was filed in Hillsborough County Circuit Court. It seeks civil penalties and an injunction to prevent Juul “targeting children through their marketing and product design and from deceiving consumers with respect to the nicotine concentration.”
“Juul relentlessly marketed to underage users with launch parties, advertisements using trendy-looking and young models, social media posts and free samples,” the lawsuit states. “It created a technology-focused, sleek design that could be easily concealed and sold its product in flavors known to be attractive to underage users. Juul also manipulated the chemical composition of its product to make the vapor less harsh on the throats of the young and inexperienced consumers it courted. To preserve its young customer base, Juul relied on age verification techniques that it knew were ineffective.”
Juul responded to the lawsuit, stating that “it is disappointing to see the Florida attorney general direct her state’s resources to suing Juul Labs.”
Juul’s response sets out “a few facts that should be understood,” including that “Florida’s attorney general initially led the negotiations between the state attorneys general and Juul Labs. For reasons that have not been explained to the public, she ultimately decided not to participate in a settlement to which 48 states and territories are now party to. Had she done so, like all those other jurisdictions, Florida would have its share of millions of dollars to help combat underage use and develop cessation programs. Instead, the Florida attorney general has now embarked on a drawn-out, expensive and uncertain legal process.”
“Second,” the response continued, “Florida today suffers from the highest sales in the nation of illicit and potentially harmful disposable products emanating from China. These products are not in compliance with the [U.S. Food and Drug Administration’s] regulatory regime and, in many cases, are flagrantly targeting the state’s children. By contrast, over the past four years, Juul Labs has taken meaningful steps, including ceasing distribution of nontobacco, nonmenthol products in advance of FDA guidance on flavors, halting mass market product advertising, and restructuring our entire company with an emphasis on combating underage use. In part, due to these efforts, we have seen underage use of Juul products cut by 95 percent.”
The response went on to allege that “Florida has the highest sales of these mostly foreign-made products in the United States, with over 60 percent of vapor sales dominated by disposables whose companies often disregard responsible practices with inappropriate flavor names and questionable marketing. Over the past months, we have been engaged with the attorney general’s office to help create a best-in-class program to combat illicit products. Even though Juul Labs plans to fight this case vigorously, the company remains ready to help Florida stem the tide of the proliferation of Chinese-made disposable products that have found what amounts to be a safe haven for foreign-made illegal vapor products.”
October 5, 2023