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Popular Vaping Products Increasingly Subject to Prop 65 Litigation

Electronic cigarettes, known as e-cigarettes or e-vaporizers (referred to herein as e-vapors) are battery operated devices that allow users to inhale an aerosol that contains nicotine. The vaping market has exploded in popularity in recent years. Currently e-vapors are the most commonly used tobacco product among pre-teens and teens in America. The manufacturers of these products have become frequent targets of enforcement actions by plaintiffs asserting violations of Proposition 65’s warning requirements.

E-Vapors Contain Chemicals Listed as Carcinogens and Reproductive Toxicants under Proposition 65

Enforcement actions against e-vapor manufacturers for violations of Proposition 65 have most often targeted a number of listed chemicals present in e-vapors (although e-vapors are known to contain numerous other carcinogenic chemicals). These include acetaldehyde, formaldehyde, and tobacco smoke, which are all listed as carcinogens, and nicotine, which is listed as a reproductive toxicant, on the Proposition 65 list.

Proposition 65 Litigation Against E-Vapor Manufacturers Soars

OEHHA’s guidance states that e-cigarettes contain nicotine (in addition to other chemicals) that are listed under Proposition 65 because they are known in the state of California to cause birth defects and other reproductive dangers. As of the end of 2017, approximately 150 60-day notices were sent to various e-vapor manufacturers for selling their products without consumer warnings in violation of California law. Between 2015 and the end of 2017, almost 100 allegations were settled for nearly $4 million in total payments of civil penalties and attorneys’ fees. The majority of these 60-day notices were issued by the Center for Environment Health (CEH), a nonprofit watchdog organization. CEH has initiated enforcement actions against e-vapor manufacturers based on the detection of listed substances in e-vapors or the assertion that the product will cause exposure to the listed chemicals referenced above.

CEH Draws Attention to the Dangers of E-Vapors

Health advocates have increasingly expressed concern about the levels of nicotine in e-vapors. Nicotine is known to cause reproductive harm and has been linked to problems with brain development when used by adolescents. The level of nicotine in e-vapors has been claimed to be inaccurate as these products are not subject to regulatory standards. Other chemicals present in e-vapors have also raised concern among health advocates. For example, formaldehyde is a chemical linked to the development of cancer. In addition, experts worry that little is known about the effects of inhaled propylene glycol, the primary ingredient in e-liquids.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Proposition 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.