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, . . . 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.