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Legal Issues From E-Tobacco Use by Student-Athletes

By Lee Green, J.D. on September 16, 2019 hst Print

The Issue

The most recent National Youth Tobacco Survey (NYTS) conducted by the Food and Drug Administration (FDA) revealed that from 2017 to 2018, the use of e-cigarettes rose 78 percent among high school students to a combined use by 20.8 percent of high schoolers of various electronic tobacco products. The same study showed a one-year rise of 48 percent in usage among middle school students to a combined usage by 12.5 percent of the younger set.

A similar study by the Centers for Disease Control and Prevention (CDC) indicated that in 2018, 4.9 million high school and middle school students in the United States regularly used (at least once per each 30 days) some form of electronic tobacco product, with the growth in usage having been exponential since 2011, when the manufacturers of e-cigarettes began to launch product lines segmented by various flavors (chocolate, strawberry, mango, gummy bear, cotton candy and the like), along with lifestyle marketing campaigns targeted toward teenagers in which the use of e-tobacco was depicted as “the essence of adolescent cool” (per one Madison Avenue advertising executive familiar with the long-time advertising playbook of “Big Tobacco”).

The biggest player in the market as of the end of 2018 was JUUL Laboratories, a subsidiary of Phillip Morris (manufacturer of Marlboro cigarettes and originator of the most effective lifestyle marketing strategy for tobacco products, the Marlboro Man), which held a 76 percent market share in the e-cigarette category, leading to the transformation of the corporate brand into a verb for the use of any e-tobacco product – “JUULing.” The FDA’s NYTS showed that although 47 percent of school personnel in the United States (administrators, staff, teachers and coaches) could correctly identify JUUL products, 35 percent mistook JUUL devices for USB drives, pencil lead containers and other objects, and 18 percent couldn’t identify JUUL products at all.

As a result of this epidemic of e-cigarette usage and the public health threat that it poses to America’s young people, a variety of legal challenges have begun to take place.

Legal Challenges

Four types of litigation have begun to appear related to e-cigarette usage. The first is lawsuits filed by public health groups against the FDA seeking court orders for the agency to initiate a thorough regulatory review of the product category and issue a set of remedies designed to protect young people. The second type is lawsuits filed by states against e-cigarette companies seeking redress for the targeting of teenagers in marketing campaigns. The third type is lawsuits filed by individuals against e-cigarette manufacturers for fraud and breach of warranty in the marketing promises made to consumers. And the fourth type of lawsuit is those filed by students and student-athletes against school districts seeking relief from sanctions imposed for code of conduct violations related to the use of e-tobacco products.

The following includes one example of each of these four types of lawsuits, along with any rulings made by the courts to-date.

  1. Public Health Groups versus the FDA – American Cancer Society, American Heart Association, American Lung Association and the American Academy of Pediatrics v. FDA (filed in U.S. District Court on May 5, 2018): On July 12, 2019, the federal court issued a ruling addressing a decision by the former Commissioner of the FDA, Scott Gottlieb, who resigned on April 5, 2019 and was replaced by the current Commissioner of the FDA, Norman Sharpless, that the FDA would not begin a regulatory review of e-cigarettes until at least 2021. The court created a so-called “deeming rule” extending the jurisdiction of the FDA to cover currently unregulated tobacco products and issued court orders that the FDA has 10 months to initiate a public health review of e-tobacco products and that manufacturers of such products will have to apply to the FDA for approval to keep their products on the market.
  2. States versus E-Cigarette Companies: North Carolina v. JUUL Laboratories & Altria Group, Inc. (Owner of Phillip Morris): On May 15, 2019, the Attorney General for the state of North Carolina filed a suit asserting violations of state deceptive advertising laws against JUUL Labs for “designing, marketing and selling e-cigarettes in ways it knows will attract minors and deceptively downplaying the potency and danger of the nicotine in its e-cigarettes.” The suit seeks reforms in the marketing strategies used by JUUL and financial damages that can be used by the state to offset public health care costs related to nicotine addiction by users of e-tobacco products. No rulings have yet been issued in the case.
  3. Individuals versus E-Cigarette Companies – A.N. v. JUUL Labs & Altria Group, Inc.: On April 15, 2019, A.N., a 15-year-old girl, filed this class action suit on behalf of all teenagers claiming e-cigarette nicotine addiction because of the alleged targeting of the demographic through the use of intensive marketing campaigns on social media – especially lifestyle campaigns using Snapchat, Instagram and Facebook – and the use of flavored e-cigarette products designed specifically to appeal to adolescents (chocolate, strawberry, mango, gummy bear, cotton candy and the like). The suit asserts violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), along with various legal prohibitions on fraud and deceptive advertising. No rulings have yet been issued in the case.
  4. Students or Student-Athletes versus School Districts – Vega v. North Canton Central School District: On October 27, 2017, a state trial court in Ohio dismissed a suit by a high school football player who was attempting to challenge his suspension for the remainder of the season for violating the chemical abuse provisions in his school’s Student-Athlete Code of Conduct, a policy that explicitly covered tobacco and the possession or use of all tobacco- related products, including e-cigarettes, vape pens and JUULs. An e-cigarette had fallen out of the player’s pocket in front of his coach and the player attempted to defend his possession of the device by arguing that he had not been adequately informed that it was covered by the code of conduct’s chemical abuse provisions. In dismissing the suit, the court noted that all student-athletes and parents had been informed that the policy included all tobacco-related products – including e-cigarette devices – and that the player’s participation in sports was a privilege, not a constitutionally protected property right.

Policy Recommendations

Among the most powerful deterrents possessed by schools in their efforts to reduce the use by students of e-tobacco products is the desire by students not to lose the privilege of competing in school athletics or activities programs. In most jurisdictions, courts have consistently ruled that extracurricular participation is a privilege, not a constitutionally protected property right. However, even for athletes and participants in other school activities, most courts require at least a minimal level of due process – both procedural in terms of opportunity to be heard and substantive in terms of basic fairness – and schools should, therefore, observe the following recommendations to ensure that provisions within codes of conduct addressing e-tobacco will withstand judicial scrutiny:

  • Define Code of Conduct Chemical Abuse Provisions with precision, being certain to explicitly include in the language of such policies all tobacco and tobacco-related products, including possession or use of e-cigarettes, vape pens, JUULs and the like.
  • Indicate whether the prohibition on possession or use only applies during the season of the sport or activity, or throughout the entire school year, or year-round 24/7. Some state legislatures or boards of education have limits on year-round prohibitions – consult your school district counsel for information on local limitations.
  • Define with specificity the various escalating tiers of sanctions for violations of the policy, making the time limits for suspensions or the conditions of expulsion as objective as possible and avoiding any vagueness or subjectivity that might result in a court determining that the policy is “arbitrary and capricious.”
  • Avoid having in place different codes of conduct for different sports and activities. Schools should attempt to standardize all aspects of the e-tobacco provisions within the code to avoid a judicial ruling that the code is “arbitrary and capricious” because students are subject to inconsistent definitions of violations and sanctions.
  • Include language that student-athletes or activity participants will be informed of violations and sanctions in writing, along with timelines for appeals and hearings. “Papering the trail” is crucial to avoid disputes over what was said orally in the original levying of sanctions for violations.
  • Be sure to observe all timelines in order to avoid a judicial determination that the school failed to follow its own procedures for handling a situation.
  • Communicate the code of conduct to all student-athletes, activity participants, parents, and coaches/activity sponsors through multiple media (in person, in writing, via websites, via social media, etc.) to avoid any claim by a student-athlete, activity participant or parent that they were unware of the e-tobacco policy component of the code.