A court ruled that a lawsuit against e-cigarette maker NJOY could not proceed as a class action. Potential class members had asserted that NJOY: (1) conducted misleading advertising indicating that e-cigarettes are safer than regular cigarettes; and (2) omitted information on its packaging about product ingredients and the risks of such ingredients. The court affirmed an earlier ruling prohibiting the lawsuit from proceeding as a class action, saying that class members failed to demonstrate how damages can be proven for the entire class. Specifically, the court said that the class was not able to show how it could calculate the difference between the price paid by consumers of NJOY and the true market price that reflects the impact of the unfair or fraudulent business practices. Although the ruling means that the case may not proceed as a class action, individuals may sue NJOY independently.
In re NJOY, Inc. Consumer Class Action Litigation, Case No. CV 14-428-JFW (JEMx), (Feb. 2, 2016).
United States
Feb 2, 2016
U.S. District Court, Central District of California
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging.
(See FCTC Art. 11)
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Electronic and/or battery-operated devices designed to deliver an inhaled dose of nicotine or other substances. Examples include electronic cigarettes (e-cigarettes), electronic cigars, electronic cigarillos, electronic hookah, vaporizers, and vape pens. ENDS does not include any device or medication approved by the government as nicotine replacement therapy.
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"As Judge Morrow held, Plaintiffs’ omissions claim “has two distinct components. Plaintiffs allege first that NJOY’s failure to include certain harmful ingredients on the label of NJOY e-cigarettes -- namely, [propylene] glycol and glycerin -- was misleading because a reasonable consumer would want to know that NJOY e-cigarettes contained propylene glycol and glycerin before purchasing them. They also allege that, even when these ingredients are disclosed, the packaging is misleading because it fails to warn of the harmful effects of inhaling such ingredients.”
Judge Morrow then concluded: “Because Halberstam admitted that he would have
purchased NJOY e-cigarettes even if the packaging had disclosed that it contained propylene glycol and glycerin, he has conceded that he did not suffer injury in fact due to the alleged omission.” August 14 Order at 42. “Halberstam therefore lacks standing to assert an omissions claim based on NJOY’s failure to disclose the fact that propylene glycol and glycerin were among the ingredients in its e-cigarette product.” Id. at 42-43. Judge Morrow, however, concluded that Halberstam has standing to assert an omissions claim based on NJOY’s failure to warn of the harmful effects of inhaling propylene glycol and glycerin."
"Accordingly, the Court concludes that Plaintiffs have not proffered a model capable of
calculating damages on a classwide basis, and, despite having been given a second opportunity, have failed to meet their burden of demonstrating that questions of law or fact common to class members predominate over questions affecting only individual members."
"The Court concludes that Dr. Harris’s proposed Bayesian hedonic regression model is
simply not designed to measure only those damages attributable to NJOY’s misrepresentations and/or omissions, and thus does not satisfy Comcast. In other words, it is not designed to calculate the fair market value of NJOY’s e-cigarettes absent the misrepresentations and omissions."
"Because Dr. Harris’s “modified” conjoint analysis and direct method continue to focus on a consumer’s subjective valuation, and thus do not permit the court to calculate the true market price of N-JOY cigarettes absent the purported misrepresentations and omissions, they do not satisfy Comcast."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
A court ruled that a lawsuit against e-cigarette maker NJOY could not proceed as a class action. Potential class members had asserted that NJOY: (1) conducted misleading advertising indicating that e-cigarettes are safer than regular cigarettes; and (2) omitted information on its packaging about product ingredients and the risks of such ingredients. The court affirmed an earlier ruling prohibiting the lawsuit from proceeding as a class action, saying that class members failed to demonstrate how damages can be proven for the entire class. Specifically, the court said that the class was not able to show how it could calculate the difference between the price paid by consumers of NJOY and the true market price that reflects the impact of the unfair or fraudulent business practices. Although the ruling means that the case may not proceed as a class action, individuals may sue NJOY independently.