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E-Cigarettes Don’t Have the Nicotine, but Do Present a Risk: Product Liability Suit Likely

With recent campaigns to educate the public about the dangers of cigarette smoking, e-cigarettes have been touted as a reasonable, more “healthy” and non-addictive alternative. It’s an electronic device that creates a mist that can be inhaled. They run on batteries and use either heat or ultrasound to have an aerosol effect – giving users the look and feel of smoking, without actual smoke inhalation and nicotine. A report by the Boston University School of Public Health found that the level of carcinogens in electronic cigarettes was almost 1,000 times lower than the level found in regular cigarettes. But, as a consumer recently discovered, e-cigarettes also may harbor a unique risk of their own – a possible design defect that may soon give rise to an increased number of products liability lawsuits.

ABC News reported recently that a man is recovering in a Florida hospital after suffering severe burns when an e-cigarette exploded in his mouth. His wife told investigators that it sounded like a rocket had exploded in the house, and the chief fire inspector who responded to the scene immediately attributed the incident to a faulty rechargeable lithium battery. Product liability attorneys, however, know that the real cause has yet to be determined – and it’s a determination that may one day take place in a court of law. Currently the use of e-cigarettes is not regulated by the Food and Drug Administration (FDA), which means that consumers who opt to use the devices basically do so at their own risk.

Without regulation, manufacturers can essentially make claims about their products (e.g. that they are safe) that are not backed up by scientific evidence, and trusting users are non-the-wiser. There are no published, peer-reviewed articles on the subject, making doctors reluctant to prescribe the products to their patients in the interest of fielding their own potential for malpractice suits. What this means is that, unfortunately, in cases like this one, the word “safety” becomes a misnomer, especially since “we have no idea of what specific chemicals are contained in these products or the safety of components of e-cigs, including the batteries,” according to Dr. Stephen Jay, professor of medicine and public health at Indiana University. In some cases, the article goes on to say, some e-cigarettes have been found to contain dangerous impurities, such as antifreeze.

Perhaps this is why recent years have seen a greater push towards having the FDA reclassify the devices as tobacco products. Doing so would make them subject to “regulation by FDA under the Tobacco Control Act, which provides FDA with the authority to regulate certain categories of tobacco products, including cigarettes, tobacco and roll-your-own tobacco.” Organizations like American Association of Public Health Physicians and World Health Organization are at the forefront of this movement, calling for clinical studies and toxicity analyses.

While the viability and safety of the product remains uncertain, the damages in this case, on the other hand, are undeniable. The Vietnam veteran who’d kicked the smoking habit two years ago lost several teeth, part of his tongue, and his study also caught on fire. People come into contact with a plethora of products on a daily basis. We trust and hope that the items are properly designed and post no threat to us when used correctly. Unfortunately though, as a design defect attorney, I know that a significant number of products are improperly designed, constructed or fail to warn about hidden dangers that may cause severe injuries or death. My sincerest best wishes are extended to the family in light of this most unfortunate incident.