In 2017 we gave an overview of e-cigarette use in the U.S. and how that use was increasing, particularly among young adults. At that time there were a lot of conflicting opinions on whether e-cigarettes are a safer alternative to cigarette use and that debate continues today. However, the concerns of e-cigarette use has increased exponentially over the past few years, and the primary safety concerns of 2017 of battery explosions and fire claims have been overshadowed by the growing known health risks associated with the vaping process of e-cigarettes, vape pens, vaporizers, e-cigars, e-pipes, and similar devices. Over the past several years, as more and more reports reveal a continual and rapid rise in the number of youth and e-cigarette smokers, this has led the federal government to label youth vaping as a "nationwide epidemic". This is despite the FDA's effort to restrict e-cigarette purchase and use to adult-only locations.

Now a study published early in January in The American Journal of Preventive Medicine provides solid evidence that vaping is tied to long-term lung problems. While this has been hinted at for some time, this study provides indisputable evidence that vaping has strong ties to serious lung diseases such as emphysema, chronic bronchitis, asthma, and chronic obstructive pulmonary disease. After analyzing 32,320 people over three years, the results reveal that vape users are 1.29 times more likely to have one of those diseases after three years when compared to non-vapers.

It's somewhat astonishing that a study of just three years can produce such evidence, as normally a smoking study would look at progression over a much longer period, some up to twenty years or even longer. To see this type of progression in just three years' time shows just how rapidly vaping can negatively affect a person's health.

This doesn't say that smokers have less health risks; in fact smokers were 2.5 times more likely to develop lung disease over the same period of time. However, people who both smoke and vape are more than three times likely to develop respiratory disease than people who do neither.

Since one of the most prominent reasons given for e-cigarette use is to quit smoking, it may come as a surprise that researchers found that 91.2 percent of the e-cigarette users studied also used combustible tobacco by the end of the study, greatly increasing the health risks for those people who end up with both habits. Also, in a separate study just published in American Journal of Preventive Medicine, it was found that out of 14,000 teenagers who vape, 75 percent use products that contain either nicotine or THC, the active ingredient in marijuana.

The Centers for Disease Prevention and Control (CDC) estimates that one in every four high school teens use e-cigarettes, a rapidly growing number. The CDC identifies patients who have use-associated lung injury due to THC-containing products such as e-cigarettes or vaping products as EVALI patients. EVALI stands for "e-cigarette or vaping product use associated lung injury." Overall, 152 different THC-containing product brands were reported by EVALI patients, the most common of these nationally being from Dank Vapes, a class of largely counterfeit products of unknown origin, and in the Northeast and South, TKO and Smart Cart brands were most commonly reported, and in the Midwest, West and Rove were more common. Therefore, THC-containing products are not likely associated with a single product brand. As of December 10, 2019, a total of 2,409 hospitalized EVALI cases were reported to the CDC from all fifty states, D.C. and two U.S. territories, Puerto Rico and U.S. Virgin Islands, with fifty-two deaths in twenty-six states and the D.C., and states are still reporting new hospitalized EVALI cases weekly.

These studies couldn't spell more trouble for product liability insurers, especially following on the heels of the consumer lawsuits against the San Francisco-based e-cigarette company JUUL Labs, in addition to the continuing lawsuits generated from exploding e-cigarette batteries and vape devices.

In brief, JUUL is being accused of deceptively marketing the product as safe, when it contains more potent doses of nicotine than cigarettes. The first suit, filed in US District Court in Northern California in late April by Bradley Colgate of La Jolla and Kaytlin McKnight of Arroyo Grande, claims that McKnight became addicted to nicotine salts and vapes JUUL pods each week. Colgate purchased JUUL to help him quit smoking, but the suit claims that the intense dosage of nicotine salts delivered by the JUUL products resulted in an increased nicotine addiction, and an increased consumption of nicotine by Colgate.

In the second case, in San Francisco Superior Court, Carl Cooper also says he purchased JUUL in hopes of quitting smoking, but in the suit alleges that JUUL worsened his addiction and turned him from a mostly weekend smoker to a habitual user within just a couple of weeks. The suit also claims that he becomes agitated and moody without regular doses of nicotine salts from the JUUL pods, and states that he now feels compelled to vape JUUL pods every day.

In June, the mother of a fifteen-year-old filed a suit, L.P. on Behalf of D.P., in US District Court in New York alleging JUUL designed its product to contain more nicotine than necessary to satisfy the cravings of an adult smoker. The suit claims that D.P. became heavily addicted to nicotine, making him "anxious, highly irritable and prone to angry outbursts," and perform poorly in school. Although the complaint alleges that the teenager's parents took specific measures to deter his use, it also states that his urges become so powerful to use JUUL that D.P. is unable to avoid vaping JUUL even though it subjects him to disciplinary measures at home and at school. Further, the suit alleges that JUUL products do not contain warnings about the inclusion of nicotine as an ingredient or the potentially addictive nature of the product, and it goes into detail about about JUUL's advertising campaigns.

In brief, the lawsuits against e-cigarette maker JUUL center around one of the following claims:

  • High concentrations of nicotine in e-liquid cartridges can cause nicotine toxicity, leading to seizures or convulsions;
  • Nicotine salts used in JUUL pods are highly addictive, making it hard for people to quit vaping;
  • E-cigarette devices contain a manufacturing defect that causes injury to the user or others, such as a battery that overheats or explodes.

The three initial suits opened the door to additional lawsuits with claims that victims have suffered seizures after vaping. As if these lawsuits were not enough, JUUL Labs and other vaping device manufacturers will likely face potential legal action based on the potential for serious lung diseases as documented in these latest studies.

Products liability law holds manufacturers liable for dangerous and defective products placed into the marketplace. Design and manufacturing defects underlie many products liability injuries, and occasionally, manufacturers fail to adequately test their products.

Local retailers who sell these products and companies that distribute them do not escape liability. Products liability laws in most states hold those who place defective products into the marketplace liable regardless of whether there is negligent conduct on their part.

With all of the unknowns, e-cigarettes have long been considered an emerging risk to insurers and many carriers have been reluctant to provide occurrence based coverage, not wanting to be in a position of having to defend or pay out potential claims for exposures that previously had no available exclusion on the CGL. ISO has just this month made available two CGL electronic cigarette exclusion endorsements to exclude hazards in connection with e-cigarettes, including their component parts and accessories; and health hazards of electronic smoking or vaping devices. These new ISO endorsements will enable carriers to selectively write coverage for risks, especially retailers, that are otherwise acceptable without covering e-cigarette and vape exposures.

Both endorsements are optional for use with the CGL and the Products/Completed Operations Liability Coverage Parts:

CG 40 12 Exclusion – All Hazards In Connection With An Electronic Smoking Device, Its Vapor, Component Parts, Equipment And Accessories

CG 40 13 Exclusion – Health Hazards, Electronic Smoking Device Vapor

Exclusion CG 40 12 addresses the design, manufacture, distribution, sale, maintenance, use or repair of an electronic smoking device or any component parts, accessories, or equipment designed to be used with such a device. The endorsement also excludes exposures related to inhaling the device's vapor.

Both endorsements add a definition for "electronic smoking device" described as a battery-powered device that delivers a vaporized inhalable substance through a mouthpiece. The definition provides a number of examples of such devices, but makes it clear that warm steam or mist inhalers are not "electronic smoking devices". The exclusion is geared towards vaping devices for recreational smoking, not therapeutic medical devices to provide medication or treatments.

Exclusion CG 40 13 uses the same definition for "electronic smoking device" as in CG 40 12, but the endorsement exclusion applies only to "bodily injury". A coverage exception applies to bodily injury arising out of the explosion, bursting, or rupturing of an electronic smoking device or component parts, equipment or accessories for use with such devices, for any reason. An explosion is strictly related to the equipment used to vape the product, and not the product itself. Along with the equipment itself, the exclusion addresses the vapor as well, which could have unknown long term effects.

Includes coyrighted material of Insurance Services Office, Inc., with its permission.