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Lawsuit Claims Vape Company Lied About the Chemicals It Puts in E-Juice

Image: Vaping360.com

Written by Kaleigh Rogers

A group of three vapers has filed a multimillion-dollar class action lawsuit for false advertising against a US company that makes flavored liquids for e-cigarettes.

The suit alleges that Five Pawns, a high-end e-liquid manufacturer, violated state and federal false advertising laws by misleading consumers about certain flavoring chemicals found in some of its liquids. The chemicals have been linked to lung disease when inhaled and are found in many vaping products, but the lawsuit claims Five Pawns lied to its consumers about using the chemicals.

Five Pawns, which is based out of California, has made a name for itself in the vaping market as a luxury brand. It offers hand-made, small-batch e-liquids—the flavored, usually nicotine-laced liquids used in vaporizers like e-cigs—with a luxury price tag to match. A 30 mL bottle of one of Five Pawns’s flavors will run you $27.50, compared to as little as $8 per 30 mL for some other brands.

However, the company landed in hot water earlier this year after it published test results that revealed many of its liquids contained high levels of a chemical commonly used in food flavoring called acetyl propionyl (AP). AP gives foods (and vapor) a creamy, buttery taste and texture (it’s commonly used in microwave popcorn) and is nearly identical to another chemical called diacetyl (DA), which has been linked to serious lung disease when inhaled by factory workers. Though the long-term effects of inhaling DA or AP through vaping have not been studied, some vapers prefer to avoid the chemicals.

Five Pawns is far from the only company to use the chemicals—AP and diacetyl are very common in certain kinds of e-liquid flavors, like butterscotch and caramel. But the lawsuit asserts that Five Pawns e-liquids misled customers about its use of the chemicals.

The lawsuit alleges that Five Pawns claimed to have eliminated all diacetyl from its products, but later tests showed many liquids still contained trace amounts. It also claims that Five Pawns purposely told consumers its products were free of DA and AP despite having test results that showed the contrary, and asserts that the levels of AP were egregiously high:

Since the vaping market is unregulated in the US, there are no laws about having to disclose certain ingredients to consumers or warn about potential harm. However, the suit is specifically accusing Five Pawns of misleading and deceiving its customers, which is illegal.

John Bowerbank, the attorney representing Five Pawns, told me via email that the company refutes the claims, and that the company said the lawsuit is “unfounded and without merit.”

“Five Pawns is leading the industry with regard to safety and transparency on this issue and we intend to vigorously dispute the claims and allegations in the lawsuit,” the company wrote in a statement sent by Bowerbank. “Five Pawns will fight aggressively on behalf of itself and the entire vaping industry to set a precedent to avoid copycat lawsuits against other vaping companies that are driven by the improper motive to line one’s pockets by forcing undue monetary settlements.”

The three plaintiffs brought forward the lawsuit in California last week, under the representation of a New York law firm. Though it doesn’t demand a specific amount in damages, the suit states that the damages sought exceed $5 million. The suit is open for any other customer who bought Five Pawns liquids in the last three years to join in.

Filing a suit is the easy part, but getting that suit certified class action and actually making it to trial is a difficult task, so it’s yet to be seen whether or not Five Pawns will have to face these allegations in court. But the filing highlights the growing tension between a passionate consumer base and unregulated manufacturers. There’s clearly a need for some structure in the market, which is expected to hit $3.5 billion globally this year. And whether this lawsuit makes it to court or not, as the industry tries to cope with its rapid growing pains, more lawsuits could easily be on the horizon.

E-cigarette regulations may increase teen smoking (and help Big Tobacco)

November 8

As teen smoking rates have declined, teen use of e-cigarettes and other vaping devices have increased. This is a real concern, and it has prompted many states to ban e-cigarette sales to minors. Such regulation sounds like a good idea, but new research suggests it may backfire.A forthcoming paper in the Journal of Health Economics finds that bans on teen access to e-cigarettes may increase teen smoking rates. Here’s how the Yale School of Public Health describes the research:

Using data from the National Survey on Drug Use and Health, the research finds that state bans on e-cigarette sales to minors yield a 0.9 percentage point increase in rates of recent conventional cigarette use by 12 to 17 year olds, relative to states without these bans.

“Conventional cigarette use has been falling somewhat steadily among this age group since the start of the 21st century. This paper shows that bans on e-cigarette sales to minors appear to have slowed this decline by about 70 percent in the states that implemented them,” said Abigail Friedman, assistant professor of public health and the study’s author. “In other words, as a result of these bans, more teenagers are using conventional cigarettes than otherwise would have done so.”

Teen smoking is a serious public health concern, so these results should be alarming. As a father, I don’t want my kids to use e-cigarettes — and I certainly don’t want them to even consider doing so until they are mature enough to make informed choices — but I don’t want them to smoke even more. Nicotine addiction is bad, but nicotine addiction combined with the serious health consequences of smoking are worse. If forced to choose — and I would prefer not to — smoking is clearly the greater evil.

There is increasing reason to believe that, whatever the risks of e-cigarette use, they are a tiny fraction of those presented by conventional cigarettes. There is also good evidence that using e-cigarettes as an alternative source of nicotine can help smokers quit (at least those smokers who want to quit), and they may be as — if not more — effective than alternative smoking cessation methods (at least for some smokers). Again, while e-cigarettes are not risk-free — and there is still much to be learned about their potential long-term health effects — there is an emerging consensus that they are far less dangerous than smoking. Insofar as there is a trade-off between smoking rates and vaping rates, the preference for vaping should be a no-brainer.

That e-cigarettes are a potential substitute for traditional cigarettes is well understood by the tobacco industry — and it has that industry worried. While the big tobacco companies have developed their own e-cigarette brands, they are also supporting the increased regulation of e-cigarettes and other vaping devices. Such regulation is likely to suppress competition to the tobacco companies’ benefit, both by restricting the relative availability of e-cigarettes and reducing competition within e-cigarette markets to the advantage of larger firms. I explore this point with Bruce Yandle, Roger Meiners and Andrew Morriss in this Regulation article and this more extensive paper forthcoming in the Yale Journal on Regulation. The bottom line: Not only could poorly conceived e-cigarette regulation undermine public health, it could help tobacco companies as well.

What does this all mean? Well-intentioned public health measures do not always protect public health. Premature or poorly constructed regulation of e-cigarettes may compromise smoking-reduction efforts and (as our research suggests) advance the interests of tobacco companies. I support measures to discourage teen e-cigarette use, and we should all want such measures to be effective. Regulation of new technologies is sometimes justified, but it can also do more harm than good.

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