Time for an update on that other epidemic affecting the nation’s school districts: vaping.
In the beginning weeks of 2020, an effort by dozens of school districts to force e-cigarette manufacturers and distributors to help defray the costs of monitoring, treatment, and prevention program for youth seemed to be gathering steam. Close to 100 districts had sued, either in federal or state courts; some had requested class-action status. Many of those lawsuits are now being coordinated together by their respective courts.
The coronavirus pandemic has since focused school districts’ attention on many other more urgent matters, from feeding increasing numbers of students to cobbling together distance learning. That has inevitably slowed the filing of new lawsuits. But it hasn’t stopped them: At least one Wyoming district announced its intention to sue May 13, and now as of May 15, we have a new, interesting development in the story.
The latest lawsuit, filed on behalf of the 13,000-student Peoria, Ill., district as well as three smaller Illinois districts, is notable for one particular reason. It appears to be the first to try to hold a major retailer accountable for the effects of vaping on youths, naming the pharmacy chain Walgreens as a defendant.
The lawsuit was filed directly in the U.S. District Court for the Northern District of California—the home of a multidistrict federal lawsuit against e-cigarette manufacturers. It seeks class action status for similarly situated Illinois districts.
Like most of the other vaping suits, it accuses JUUL, the most dominant e-cigarette manufacturer with about 60 percent of the market, and Altria, a tobacco company that owns a significant stake in JUUL, for allegedly marketing to youth with attractive social-media advertisements and fruit and candy flavors. (Those were voluntarily taken off shelves in 2018.)
Fewer of the lawsuits have gone after specific distributors, and mostly those have been regional distributors or wholesalers, not a retail outfit like Walgreens.
Once again, the parallel between these lawsuits and the opioid litigation still cranking through the court system are easy to spot. Municipalities took the lead in the opioid litigation, and similarly, cities and school districts are leading the charge on e-cigarette use. The second wave of opioid litigation focused on major retail pharmacies, like CVS, Walgreens, and Rite-Aid—with cities accusing them of causing a public nuisance. That’s a claim in the vaping lawsuits, too.
Here’s where the claims differ, though: The Illinois lawsuit says Walgreens has failed to prevent vaping products from falling into the hands of minors.
“None of this [marketing] would have been successful without sales to minors,” the complaint reads, going on to note that 341 of nearly 1,600 reported violations for selling tobacco products to underaged youths at Walgreens concerned e-cigarettes and/or liquid sales.
It quotes liberally from a March 2019 warning letter sent to Walgreens by the Food and Drug Administration, which regulates tobacco and e-cigarettes.
“Among pharmacy chains that sell tobacco products,” the complaint quotes from that letter, “Walgreens is the top violator, with 22 percent of the stores inspected having illegally sold tobacco products to minors.”
A Walgreens spokesman said that the chain wouldn’t comment on pending litigation. He pointed out, though, that the company announced last fall that it would stop selling e-cigarettes in its stores. (Another major retail pharmacy outlet, CVS Health, stopped selling tobacco products in 2014 and has never sold e-cigarettes.)
It’s not immediately clear that this will change much in the long run—pharmacy chains won a reprieve of sorts in the opioid litigation last month when an appeals court ruled that they could only be in their role as distributors, rather than dispensers, of the pills—but it is worth keeping an eye on this as an interesting bellwether in this evolving litigation.
Stephen Sawchuk/Education Week