State Sen. Heather Carter

State Sen. Heather Carter’s bi-partisan effort to raise the age for buying vaping products to 21 fell apart when many of her Republican colleagues in the State House nixed the idea.

Kyrene School District has joined a number of others across the nation in filing a federal lawsuit against the world’s largest manufacturer of e-cigarettes and vaping products and makers of similar items.

The suit was filed in San Francisco U.S. District Court July 15 against JUUL Labs, Phillip Morris USA, NuMark and Altria Group, as well as many other manufacturers whose names have not yet been tracked down. It is one of many that large and small districts have filed in various jurisdictions across the country, though attorney William Shinoff is planning to join most of the plaintiffs in a class action suit.

Higley Unified Governing Board is scheduled to decide tonight, July 29, on joining and Tempe Union’s school board is expected to consider it next month, according to Shinoff.

The lawsuit accuses the companies of racketeering through “marketing strategy, advertising and product design” products that have “dramatically increased the use of e-cigarettes” among Kyrene students.

In turn, the suit alleges, that has forced Kyrene to spend “significant resources to combat defendants’ deceptive marketing scheme, to educate its students on the true dangers of defendants’ e-cigarette products and to prevent the possession and use of defendants’ e-cigarette products on” school property.

Kyrene Superintendent Jan Vesely detailed that diversion of resources at a June 23 meeting of the Governing Board, which voted unanimously to file the suit.

The district is not spending any money to prosecute the case and Shinoff would collect 25 percent of any money Kyrene would be awarded if he is successful in court.

“[Per] many middle schools throughout the United States as well as high schools throughout the United States, vaping has become a large problem and issue,” Vesely told the board last month. 

“In order to try to identify the vaping problems in the restrooms,” she said, “we did install some vaping detectors. Our staff did significant work on those vaping detectors – probably hundreds of hours of work between IT and our school administrators.”

But she said the detectors turned out to be unreliable, giving too many false positive readings and wasting “all of that manpower and all of that time related to the installation of that equipment” that amounted to “hundreds of hours.”

The district got its money back for the detectors themselves but Kyrene wants to recoup some of the money it spent installing and trying to get them to work.

Board member Michelle Fahy noted that “in addition to the out-of-pocket costs, there’s of course the health and safety of the students. So, I think that’s first and foremost why the district is really focused on taking this action.”

The lawsuit details Kyrene’s experience with vaping, stating it has had an “impact upon curriculum and development; class time; increased time spent addressing discipline and supervision issues; and increased counselor time spent with addicted students and peers who are concerned about this epidemic.”

“District employees have been forced to spend more time physically supervising students to ensure that they are not using JUUL products,” it said, adding that Kyrene staffers “are also spending significantly more time addressing discipline problems related to JUUL use.”

“Counselors at the school district are now facing the reality of spending time discussing JUUL use with students and trying to help students who have become addicted,” the suit states. “Students are now beginning to tell counselors that they are concerned about their peers using JUUL and are afraid because the students do not know what they are putting in their bodies.”

It said JUUL and the other defendants are responsible for forcing Kyrene to adopt “a comprehensive approach, one that includes addiction counselors in schools; prevention education that includes information about the health consequences of JUUL use on adolescents’ bodies and minds; the development of refusal and other skills within the students; and, addiction treatment options.”

The suit notes that the vaping epidemic has virtually wiped out the gains that anti-smoking campaigns have made over the years nationally among young people.

After youth smoking rates plummeted from 28 percent in 2000 to 7.6 percent in 2017, “this incredible progress towards eliminating youth tobacco and nicotine use has now largely been reversed due to e-cigarettes and vaping,” it states. 

“Between 2011 and 2015, e-cigarette use among high school and middle school students increased 900 percent,” it continues. “Between 2017 and 2018, e- cigarette use increased 78 percent among high school students, from 11.7 percent of high school students in 2017 to 20.8 percent of high schoolers in 2018.”

The increase also has occurred at the middle school level, the suit alleges, with a 48 percent increase in vaping between 2017-18.

The lawsuit cites various federal health officials who have described vaping among teenagers as being at epidemic levels.

JUUL controls 70 percent of the e-cigarette market after entering it just five years ago.

Its sales over that time have skyrocketed, generating $224 million in sales in 2017 – a one-year increase of 621 percent – and $942.6 million in 2018 – a 783 percent increase over what it sold two years earlier.

The lawsuit also outlines how company founders Adam Bowen and James Monsees set out on a path to “refresh the magic and luxury of the tobacco category” and reach “consumers who aren’t perfectly aligned with traditional tobacco products”  in order to recreate the lost “ritual and elegance that smoking once exemplified.”

“By design, a cornerstone of the product’s commercial success is its addictive nature,” the suit states. “JUUL is, in many ways, the paradigmatic start-up. It has all the markings of Silicon Valley success: staggering profit margins, meteoric growth and status as a cultural phenomenon.”

Indeed, the company in three months reached a valuation of $10 billion, according to the suit, which cited statements Monsees has given in interviews that said internal documents he obtained from lawsuits against tobacco product manufacturers helped the company design equally addictive products.

Altria and its related companies bearing the same name entered the Arizona market with a brand called MarkTen in 2013.

Its aggressive marketing campaign using Disney movies was so outrageous that even tobacco manufacturers called it “irresponsible.”

Altria also benefited from a distribution network of 60,000 stores that gave it nearly half the e-cigarette market in Arizona in just seven weeks, the suit states.

“Because e-cigarettes are subject to more relaxed regulation than cigarettes, Altria was able to market its products in ways it could not have done for traditional tobacco products,” the suit states. “Altria marketed its e-cigarettes in flavors that would appeal to youth: Strawberry Brulee, Apple Cider, Hazelnut Cream, Spiced Fruit, Piña Colada, Glacier Mint, and Mardi Gras (apparently a mixed berry flavor).”

Though Altria in early 2018 agreed to tone down its advertising and vowed to federal officials it would “reverse the current use trend among youth,” it later the same year made a $12.8 billion investment in JUUL.

That investment started paying off the following year as JUUL reaped $3.4 billion in sales in 2019.

“With this investment,” the suit states, “Altria now owns both the number one youth initiation cigarette in the United States (the Marlboro cigarette) and the number one youth initiation e-cigarette in the United States, JUUL.”

The suit also said that while JUUL “claims its mission is to ‘improve the lives of the world’s one billion adult smokers by eliminating cigarettes,’” a company engineer conceded, “We don’t think a lot about addiction here because we’re not trying to design a cessation product at all … anything about health is not on our mind.”

All the defendants, which are interrelated through various corporate deals, have waged such aggressive marketing and advertising campaigns that it clearly intended to hook teens and even children on products with high levels of nicotine, the lawsuit states.

The suit cites the testimony of various medical experts, who said, “Nicotine poses a particularly potent threat to the adolescent brain, as it can ‘derange the normal course of brain maturation and have lasting consequences for cognitive ability, mental health, and even personality.’

“Studies also show that exposure to nicotine as a teen – even minimal exposure – biologically primes the brain for addiction and greatly increases likelihood of dependence on nicotine as well as other substances later in life.”

As for why school districts are suing the companies, the suit notes the impact of JUUL on student culture.

“It is not an overstatement to say that JUUL has changed the educational experience of students across the nation,” the suit states.

“JUUL use has completely changed school bathrooms – now known as ‘the JUUl room’…The ubiquity of JUUL use in high school bathrooms has generated numerous online spoofs about ‘the JUUL room.’

“Kids have also coined the term ‘nic sick’ – which, as one high school student explained to CBS News, ‘kinda seems like a really bad flu, like, just out of nowhere. Your face goes pale, you start throwing up and stuff, and you just feel horrible.’”

The suit says “rampant JUUL use has effectively added another category to teachers’ and school administrators’ job descriptions; many now receive special training to respond to the various problems that JUUL use presents, both in and out of the classroom.”

“Some schools have responded by removing bathroom doors or even shutting bathrooms down and schools have banned flash drives to avoid any confusion between flash drives and JUULs.

“Schools have also paid thousands of dollars to install special monitors to detect vaping, which they say is a small price to pay compared to the plumbing repairs otherwise spent as a result of students flushing vaping paraphernalia down toilets. Other school districts have sought state grant money to create new positions for tobacco prevention supervisors, who get phone alerts when vape smoke is detected in bathrooms.”

It also notes that JUUL even targeted summer camps with kids as young as 8 in an effort to push its vaping products.

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