JUUL's Nicotine-Based E-cigarettes Declared A Public Nuisance In Greenbrier

JUUL’s e-cigarettes have been declared a public nuisance in Greenbrier County.

Attorney Rusty Webb of the Webb Law Centre in Charleston approached the Greenbrier County Commission with a request the declaration be made and for the county to join in a lawsuit against the manufactures of the nicotine-based vape pens.

“You all are part of the opioid case – I know that because I represent the 45 counties and cities in West Virginia and I meet regularly with your attorneys,” Webb said. “This JUUL lawsuit is taking the exact same theory that we’re using the opioid cases, public nuisance, and applying it to the [second] epidemic that is now vaping in West Virginia, primarily with teenagers and young adults. What we’re going to do is apply the same law that we’re applying in the opioid cases to sue JUUL, which has been done around the country, primarily by boards of education.”

As explained by the Centers for Disease Control, “E-cigarettes are electronic devices that heat a liquid and produce an aerosol, or mix of small particles in the air. … The use of e-cigarettes is unsafe for kids, teens, and young adults. Most e-cigarettes contain nicotine. Nicotine is highly addictive and can harm adolescent brain development, which continues into the early to mid-20s. E-cigarettes can contain other harmful substances besides nicotine. Young people who use e-cigarettes may be more likely to smoke cigarettes in the future.”

Webb and Commissioner Tammy Shifflett-Tincher spoke about the possibility of the county joining the lawsuit.

“I was the one who initiated this, because I do feel that it is a very important issue,” said Tincher. “We don’t deal with the children directly, but it is very important we try to … do something about this issue. I do believe this is the first step and, hopefully, if the Board of Education gets involved in it, then we can get a focus within the school system where the biggest problem is.”

Webb pointed a spotlight at the pre-COVID-19 pandemic numbers of use of these nicotine-based products – “one in three West Virginia high school students use E cigarettes. That’s a 150 percent increase between 2017 and 2109, which are the latest statistics we have. It takes a while to catch up with statistics. In 2019, over 60% of high school students reported having tried e cigarettes, and that’s up from 44 percent in 2017. Since 2017, high school students report frequent use of vaping products … 20 days a month or more. That is an increase by 440%. I call it the secondary epidemic in West Virginia.”

After the meeting, The West Virginia Daily News spoke briefly with Superintendent of Schools Jeff Bryant, who confirmed this was a problem in Greenbrier County.

“Vaping is an issue at our secondary schools,” explained Bryant. “There has been dialogue among the principals, PRO Officers, Safety Director, Board Members, and Board Staff. We have discussed prevention strategies.”

Although he also noted that, as of Tuesday, November 23, “there has been no conversation with the Board of Education joining in the commission’s lawsuit,” this was only a few hours after the County Commission passed the resolution.

Why sue JUUL? The company is one of the biggest e-cigarette manufacturers and sellers.

“JUUL is a brand of e-cigarette that is shaped like a USB flash drive – like other e-cigarettes, JUUL is a battery-powered device that heats a nicotine-containing liquid to produce an aerosol that is inhaled. … All JUUL e-cigarettes have a high level of nicotine. According to the manufacturer, a single JUUL pod contains as much nicotine as a pack of 20 regular cigarettes. … Approximately two-thirds of JUUL users aged 15 – 24 do not know that JUUL always contains nicotine.”

Why now?

“The [recently passed] Senate Bill 12 gives the county commissions the ultimate authority on health in the county,” Webb explained. “You all now have a veto power over your boards of health. Ideally, we could have the boards of health file, but I think by the county commission filing, when and if we would ever recover your money, you could distribute it down to the board. … Mercer County, Raleigh County, Mineral County, Gilmer County, … and the Tucker County Board of Education signed on. Why the other boards of education are not running to call me, I don’t know – there’s money that potentially could be on the table for them to use for prevention in the high schools [and] middle schools, sadly. But ideally, I’d like to get the Greenbrier County Board of Education [and] everybody else, all the counties, involved.”

Webb asked the commission to join the lawsuit.

“I would love it if the Greenbrier County Board of Education as well as all the counties would join in tandem with the county commissions and filing these suits,” Webb said. “When we get the money, [we would] use that for abatement. I use the term abatement because it’s the same terms they’re using [in the opioid cases]. In other words, we’re not asking to pay back moneys that we’ve spent out, trying to prevent it. … What the idea is to get [money] for future prevention and abatement to help deal with the epidemic.”

In addition, the commission does not need to pay the Webb Law Centre upfront – Webb explained “It’s a contingency fee – if we get your money we get paid [and] if we don’t, we don’t. … If you recover [funds], we recover a 30 percent contingency fee, which will probably be lowered by a court in California. This has been consolidated in the Northern District of California. In these mass tort cases, the courts have a tendency to dial down their contingency fees around the country. That’s what they’re going to do in the opioid case too, probably.”

After Webb spoke, Commission President Lowell Rose explained the commission would need to sign off on two things – “one is the resolution declaring that the distribution of JUUL’s e-cigarette product [has] created a public nuisance for the citizens of Greenbrier County, and the other is the agreement for legal services for e-cigarette litigation.”

After a motion from Tincher, the commission approved both documents.

Attorney Rusty Webb (standing) speaks with the commission, with Commissioner Tincher appearing by phone.

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