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INSIGHT: Like Big Tobacco, the Battle Against Big Vape Is Coming

Dec. 13, 2019, 9:01 AM

The decades-long battle to hold Big Tobacco to account is only just ending—and, yet, it seems neither producer nor distributor learned from the illnesses, deaths, and lawsuits that came as a result of their products.

We’re watching unfold before our eyes a vaping-related health crisis every bit as harmful and pernicious as the one caused by cigarettes themselves. Sadly, as with the fight against Big Tobacco, companies with the greatest responsibility—and the ability—to protect the public are precisely the ones letting us down.

The Centers for Disease Control and Prevention (CDC) has reported, as of Nov. 20, that the outbreak of severe pulmonary disease has taken the lives of at least 47 individuals and affected 2,290 people—counting lung injury cases alone, and including a double lung transplant for a teenager—across the United States. Those figures represent only known cases to date.

Usage Increasing

With vaping adoption rates skyrocketing—particularly among teens—the true extent of this “epidemic on speed” (as one parent put it to a Time magazine journalist) is still unknown.

What we do know is that now is the time to take action. In the 1980s and 1990s, hundreds of brave men and women suffering major illnesses linked to tobacco stood up to challenge some of the biggest and most powerful companies on earth. And while the courage of those individuals helped bring the truth to light, it did little for people already sick and dying from the effects of smoking.

The ruling was against the corporations in the case against Big Tobacco. Tobacco companies were found to be aware of the multiple health risks associated with their products, even as the companies continued to market, sell, and profit. A federal judge ruled that the tobacco industry was guilty of fraud to further a conspiracy to deceive the American public about the dangers of its products—and we’re not a far cry from that here.

We don’t get to make the same mistake twice. With alarm bells sounding across the country, regulators and the private sector have to act decisively to fulfill their obligations to the public. Unfortunately, instead of swift action, we’re seeing companies put profits ahead of the health and safety of their customers.

Role of Retailers

Walmart, the world’s biggest brick and mortar retailer, has played an unfortunate role in this story. The company—which lists as a core value the imperative to “Act with Integrity”—has chosen to pause future sales of vaping devices, such as the now-infamous Juul. We might applaud them for this, however, Walmart at the same time has refused to pull vaping devices and oils already on its shelves.

It’s hard not to see the glaring contradiction in this decision. On the one hand, Walmart has accepted that vaping poses enough health-related questions to halt future sales. But those questions are seemingly not serious enough for the company to lose money on already-stocked units.

Walmart and other companies trying to thread this deadly needle might make a case that they’re fulfilling their responsibility to shareholders. But it’s not clear how acting against core values, and potentially causing grievous harm to the very people the company relies on for sales, is a safer bet for long-term growth or share prices.

Let’s set aside all the moral obligations for a moment to focus on the “business” reasons behind the argument to take all vaping products off shelves now. By leaving the products for people to purchase, Walmart and other companies are risking decades of lawsuits, millions of dollars, and a loss of business from their current customers. Law firms that are dedicated to representing the customers, when they have been wronged, will not hesitate to rightly use this choice against the corporations.

And still, as we have seen, the vaping epidemic is not a long-term, “deal with it later” issue. As millions of American parents can sadly attest, the danger is imminent. Parents are struggling to combat a trend that has been marketed to their children with chilling savvy and which not only presents a clear health risk but, in many cases, uses chemical compounds unknown to consumers.

If there’s one thing we’ve learned from the fight against Big Tobacco, it’s that action is effective. We can stop the deadly trend. But to do so, we have to act now.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Michael S. Burg is a founding shareholder of Denver-based law firm Burg Simpson Eldredge Hersh & Jardine P.C.