School Districts Are Suing JUUL Over Youth Vaping. Do They Stand a Chance?
Nearly 100 districts sue JUUL, other companies
School districts are at the head of a cresting wave of litigation against JUUL and other e-cigarette manufacturers, seeking to recover the costs of prevention programs, counseling, and treatment for addicted students.
Nearly 100 districts have sued, and the dozens of filings indicate that the epidemic of youth vaping has penetrated nearly all corners of the nation’s public education system—from a small, rural district in Mississippi to the nation’s second largest school system, Los Angeles.
Although some of the fundamental claims in the lawsuits reflect those in litigation over tobacco and opioid medication, school districts’ primary role in fighting back against vaping comes as a novel development in consumer-protection litigation, and reflects that they’ve become the de facto first responders to the crisis.
“School districts, by no control or choice of their own, have effectively become ground zero for the infiltration of JUUL’s marketing and the epidemic JUUL has created,” said Rahul Ravipudi, a partner at Panish Shea & Boyle LLP, and one of the lawyers representing Los Angeles and other California districts in a case filed in state superior court.
In interviews, superintendents said their interest in suing stems from both a desire to shape whatever settlement or monetary damages the suits could produce and a moral imperative.
“Who is better positioned than a superintendent of schools to take a stand on this issue?” said Rob Anderson, the superintendent of the Boulder Valley district in Colorado, which is in discussions to join one of the lawsuits. “We are leaders within our communities for what’s right and what’s good for kids. And I take that obligation, personally, very seriously. I do think we can fight this fight, and that if not us, who?
By Education Week’s tally, nearly 100 districts have filed a lawsuit against JUUL, and other manufacturers of vaping devices.
The lawsuit first filed in California Superior Court in October is now a consolidated case counting about 20 school districts in the Golden State, with more in the works, Ravipudi said.
At the federal level, at least 33 school districts’ lawsuits have been wrapped into a consolidated case now housed at the U.S. District Court in California for the Northern District. (About two dozen other federal lawsuits have been filed by districts but have not yet been transferred to the multidistrict litigation.)
Within both of those consolidated lawsuits, some districts have sued on their own behalf while others have requested certification as class actions. If granted by the respective courts, those cases would cover thousands more school districts.
Finally, the attorneys general of at least eight states plus the District of Columbia have sued in their own state courts: Arizona, California, Massachusetts, Minnesota, New York, North Carolina, and Pennsylvania. (A larger group of attorneys general—39—have joined together to open an investigation into JUUL’s marketing practices, including whether it targeted underage users.)
Nearly all the lawsuits target Juul, by far the most dominant e-cigarette manufacturer with about 60 percent of the market. Others name PAX Labs, which birthed JUUL; Altria, a tobacco company that owns a significant stake in JUUL; and Eonsmoke, a New Jersey-based e-cigarette manufacturer. A handful of the lawsuits also take aim at various distributors of vaping products.
Most districts have been fairly vague on specific costs they’re incurring, information which will need to be disclosed during discovery should the lawsuits proceed to the trial stage. But interviews with the districts paint a wide-ranging picture of the toll, both personal and financial.
For Anderson in the Boulder Valley district, one of the most difficult tolls has been hearing the stories of parents whose children have become addicted to nicotine through vaping.
“You’ve got parents who love their kids and who are involved in their lives, and kids who didn’t know what they were signing up for when they started to vape,” Anderson said. “They get addicted and then there are these serious health complications in their lives. These are active, healthy kids, and the fact that they started vaping has changed their families’ lives.”
In the last few years, the Boulder Valley district has received about $1.2 million in city and state grants to spend on anti-vaping and other substance abuse prevention efforts. The La Conner district in Washington state last year spent about $12,000 for vaping detectors in the bathrooms and an online subscription to a service that alerts administrators if vaping is detected.
In Rochester, N.H., already heavily hit by both the Great Recession of 2008 and the opioid crisis, the increase in vaping in schools has led to costs for multiple city agencies, said Terence O’Rourke, the city attorney. Buying and smoking tobacco products while underage in in New Hampshire are classified as adult offenses, and so students who get caught vaping have to be processed through the city’s alternative-sentencing program.
Among the city’s other costs: Hiring a monitor to prevent vaping at the city’s community center—the home of its alternative high school, and where much of its youth programming takes place. The new position costs $32,000 annually.
“This is not a money grab by the city. We need the resources to undo the damage that’s been done to our kids,” O’Rourke said.
Adrian Hammitte, the superintendent of the 1,150-student Jefferson County schools near Natchez, Miss., estimated his district lost $200,000 in the 2018-19 school year, the result of skyrocketing student absences due to vaping that have led to less per-pupil funding, which is allocated on the basis of attendance.
“It’s about having a seat at the table,” said Hammitte, when asked about his district’s decision to sue. “Vaping is impacting our students, too, and if you don’t have a seat at the table, you don’t have a voice. And we wanted a voice in the conversation.”
It’s unclear what all the costs borne by districts would add up to in total. In California alone, Ravidpudi said he is still surveying participating districts on costs and declined to give a ballpark figure.
But it’s clear that it could be substantial. Attorneys in the Jefferson County, Miss., lawsuit estimated that, if that case is certified as a class action to cover all of Mississippi’s districts, claims would amount to more than $5 million.
The districts’ participation in the litigation represent an evolution in how local government is viewing both the costs and its role in responding to public health crises.
A landmark 1998 tobacco master settlement benefited states but frustrated county and municipal governments after states spent only a small share on treatment and prevention programs, noted Kathleen Hoke, a professor of law and the director of the Network for Public Health Law, Eastern Region, at the University of Maryland’s law school.
And so during subsequent litigation, such as the ongoing opioid litigation, municipalities often beat states to the courthouse. Similarly, districts are now asserting their muscle over vaping, she said.
What isn’t clear is whether courts will be receptive to the districts’ arguments. There’s no question that schools are spending thousands to respond to addicted students’ needs, Hoke said, but what the courts will need to determine is whether Juul and other vaping manufacturers are directly responsible for that harm, she said.
“They are going to say they have abided by all the federal laws and state laws that have existed, and have complied in the regulatory scheme and can’t be liable for this tertiary impact,” Hoke said. “That’s the strongest argument for Juul, and it’s a good one.”
Representatives for JUUL did not respond to a request for comment in time for publication.
But the districts have advanced powerful arguments, too, notably their contention that companies deliberately aimed to hook young people on vaping. They have pointed in particular to JUUL’s marketing, including the use of young, attractive social media “influencers” to promote the products, and its creation of candy- and fruit-flavored vapes.
Several of the lawsuits also reference an anti-vaping curriculum JUUL allegedly encouraged schools to use that, attorneys for the districts argue, actually downplayed vaping’s health risks. (JUUL contends that it did not market its products unlawfully towards youth and has pointed out that it voluntarily took fruit and candy-flavored vape flavors off the market.)
“I don’t think it’s a slam dunk on either side,” Hoke said.
Lynn Rossi Scott, an attorney at the Fort Worth, Texas, law firm Brackett & Ellis, agreed that the legal questions are open ones.
“I do see this is a growing trend, and I think it’s just going to take the first case that actually gets before a judge to make a determination whether or not a district has standing,” said Rossi Scott, who has not read the litigation. “I liken this to the asbestos cases from many years ago, where it was very clear that the school districts had standing because they had to conduct significant remediation efforts in their schools to remove asbestos or seal asbestos.
There were very significant damages. These cases, I think, are a little more speculative, and a little more difficult to prove damages. But let’s wait and see.”
Neither Hoke nor Rossi Scott is involved in any of the cases.
More to Come?
As with any civil litigation, higher numbers amp up the pressure on companies to reach a settlement. And there are signs that interest could be growing.
Vaping was enough of a priority for districts that it was a topic of a session at the recent national conference for AASA, the School Superintendents’ Association, at which Mark P. Chalos, an attorney with Lieff Cabraser Heimann & Bernstein, whose firm was named as one of four co-lead counsels for the federal multidistrict litigation, spoke.
Chalos said he expects more lawsuits to be filed, but he thinks school boards, superintendents, parents, and district officials are still in the beginning stages of understanding the impacts of vaping.
“I think we are at a relatively early stage in the awareness being raised on this issue,” he said. “I would expect that unless we can stem the tide of the vaping crisis, we’re going to see more children vaping, and more teachers and school administrators and parents will become aware of it. Whether that results in more school boards or parents or children participating in the civil justice system remains to be seen.”
Indeed, at the same conference, some superintendents worried that they were underestimating just how prevalent it was in their schools—with several acknowledging that they could not distinguish vaping devices from a random assortment of technology bric-a-brac, including a USB drive and an Amazon Fire Stick.
“My realization with that session was that we’ve not even scratched the surface. It’s really scary to think about the many devices out there we’ve not even seen or captured,” said Tony Sanders, the superintendent of the U46 district in Elgin, Ill. His district has already started picking up, at $24,000 annually, the full cost of an online program designed as an alternative to suspending students who are caught with drugs or alcohol, in which both parents and students participate.
He’s planning to discuss with his school board whether to join a lawsuit.
Joelle Rossback Dahl is the co-founder of Advocates for Clean Teens, a parent-advocacy group for teens with substance abuse in Boulder, Colo., which worked with the Boulder Valley district on many anti-vaping efforts, including pushing for the Boulder City Council to pass several anti-vaping ordinances last year.
Dahl, who has watched a fellow parent struggle to help their child quit vaping, thinks the district should join the growing number of school systems taking the fight directly to e-cigarette companies.
“At the end of the day, this isn’t a school problem, this isn’t a parent problem,” she said. “This is a Big Tobacco-and-FDA-having-allowed-this problem... It’s not the school’s fault, and it’s not parents not doing their jobs. The best of the parents can have kids who are vaping. It just needs to be a holistic effort—the city, the community, the schools, the medical community, you name it. But these kids have been swindled by Big Tobacco, and it’s really, really disheartening.”
Vol. 39, Issue 24, Pages 1, 12-13Published in Print: March 4, 2020, as Schools' Fight Over Vaping Grows