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Puffery decried in anti-NJOY lawsuit

NJOY is seeking dismissal of an allegedly frivolous class-action lawsuit that calls the company's advertisements deceptive.

On 10 December, parent company Sottera, Inc. and offspring company NJOY moved in the US District Court for central California to dismiss the “consolidated amended complaint” originating from plaintiffs in California and Florida. A number of law firms are arguing for the plaintiffs, including Wolf Haldenstein Adler Freeman & Herz, Westerman Law Corporation, Levi & Korsinsky, The Willner Firm, and Bisnar Chase. Troutman Sanders is representing Sottera/NJOY.

Plaintiffs charge that the company uses “subtle inference, engaging come-ons, and small print,” claiming to be shocked that advertisers would resort to such techniques. They claim that the purpose of these ads is to convince the public that e-cigarettes are less harmful than tobacco cigarettes and may help smokers quit. Given the growing consensus that the allegedly fraudulent claims are indeed the case, the court faces two questions: are the claims true, and does NJOY make them?

Most all common sense observers now agree that the alleged claims are in fact true, but NJOY still insists that it does not make them. Spokespersons for the firm argue that the plaintiffs cannot point to an instance of an outright claim that e-cigs are healthier, while opponents insist that they are “implied”. NJOY also counters that their packaging includes explicit warnings about birth defects, reproductive harm, elevated heart rates, and higher blood pressure.

The slogans targeted by the plaintiffs include “Friends Don't Let Friends Smoke”, “Cigarettes, You've Met Your Match”, “Try Something New in Bed”, “So you get to keep the things you like about smoking, while losing the things you don't”, and “Smokers Finally Have a Real Alternative”.

Sottera was the company originally targeted by the Food and Drug Administration in 2009, barring their imports with the claim that they were therapeutic devices and subject to FDA regulation. In 2010, the US Court of Appeals ruled for Sottera, claiming that they are not subject to FDA regulation because they are not pharmaceuticals. Sottera thus won, and NJOY was allowed to import, but the upshot was that all e-cig companies were henceforth barred from saying what everybody believes to be true, that e-cigs help you quit. Thus the entire industry was forced to conceal the elephant in the room, advertising what is obviously a smoking cessation device as something else.

NJOY's legal experts point out that the ads “say nothing about health or safety.” They call the spots “generalized, non-specific, and subjective, [and thus] . . . non-actionable.” Since the standard of false advertising is stated as “likely to mislead a reasonable consumer,” then NJOY ads, it is claimed, do not meet that standard.

Beyond that is the very definition of “mislead”. If it is true that e-cigarettes ARE safer and DO help you quit (a proposition that is now approaching universal consensus), then saying so does not constitute “misleading” anyone.

This case is worth watching.

  • Strawman

    It might be helpful to have an instruction on how to make a damn post!

  • djreyski

    noob here.. how to post a new thread?

  • jean wang


  • Tracey

    Hello, I am new to this. My Son bought me the eGot for my Birthday today. :). I have no clue on how to refill it. He bought a large dropper bottle of juice. I have only smoked one real cigarette today! Someone please advise how to fill this thing. I'm not educated on what the parts are called so please respond so that I can understand. Thank You SO very much! This is going to be life changing for me.

  • Smaas

    Hi I've recently bought a smoke nv e cig can anyone tell me where I can purchase cartridges with nicotine to suit or are all cartridges compatible between company's
    Cheers in advance

  • wj

    HI, I just want to warn everyone about a company in China (Best E Cigarette) Everything they sold me was faulty. They promised many times to send me replacement etc but they have never arrived.... DO NOT BUY from them!

  • Sara Jenson

    Does smoke supposed to come out when you exhale. I just got this EGo

  • Chrissy Owens

    How many of you,are replacing cartridge daily? Then when you get ready to use it dosent work?

  • Debora

    Hi all.... just started vaping last week.... my mouth is FULL of sores and is red and raw.... when I talk I sound like I have a mouth full of marbles! I have an appt with the dentist tomorrow.... is it possible that vaping has caused all this?

  • kddomingue

    Hi! New to forums and the like. I'd really love to Join in a discussion (thread?) or two but I can't find anything that tells me how to do this. When I go to the bottom of the page, it says that I can't open a new thread or post or anything. I am assuming that a post and a comment are the same thing? I joined another forum and tried to make a comment but was told that I had to log x number of posts before I could do so. Wow! So confused! Anyway, I'd love to join in if only someone would be kind enough to tell me (and others like me) how to go about it! Thanks, in advance, for not laughing too hard at this forums newbie!

  • Jessica Kahn

    UKW? u know what?

  • Tom Vicinanza

    Excellent Forum. I learned a lot by reading for just a few minutes. I have a EVOD battery. My EVOD Cartomizers broke. The tips cracked off. Before I got my Kanger EVOD I was using BLU. BLU batteries dont last long especially when I use larger capacity compatible Cartomizers. I just discovered that my BLU compatible cartridges fit fine on my EVOD battery and work just great. Will I cause any damage to my EVOD battery by using the BLU compatible Cartomziers? This is kind of neat since I dont have to fill the Cartomizer. Its already filled (cotton soaked with E-juice). I can drip new Ejuice into the BLU compatible Cartomizer and get another use or two out of the compatible Cartomizer. Any comments?????

  • Andrew Lou

    Nice dictionary, just get the first kit in my life from