More Kids Drinking Toxic Liquids
May 11, 2018 | Personal Injury
In the first few months of 2017, over 8,000 children under 6 drank e-cigarette nicotine. Officials blame the manufacturers for the problem, so they may be liable for damages in court.
Packaging is the biggest problem. In many cases, the e-liquids are almost indistinguishable from food products. The containers often resemble juice boxes or cans of Reddi Whip. Manufacturers make the problem worse by including images like brightly-colored pictures and cartoons. E-cigarette makers also give these products names like Vape Heads Sour Smurf Sauce and V’Nilla Cookies & Milk. One brand — Twirly Pop — tastes like a lollipop and also contains a lollipop in the package. “No child should be using any tobacco product, and no tobacco products should be marketed in a way that endangers kids — especially by using imagery that misleads them into thinking the products are things they’d eat or drink,” opined FDA Commissioner Dr. Scott Gottlieb.
Although regulators have recently cracked down on e-cigarette sales to underage teens, more than two million underage children used ENDS (electronic nicotine delivery systems) in 2016.
Nicotine Exposure and Children
To adults, nicotine is not particularly dangerous. There is even some evidence that it might be useful in treating Alzheimer’s disease. But raw, liquid nicotine is extremely dangerous to children. Nicotine affects the heart and circulatory system. Since children’s bodies are still developing, even a tiny amount of a foreign substance can cause serious injury.
Some specific ill effects include:
- Heart attacks,
- Serious blood clots,
- Enlarged heart, and
Because these conditions are so rare in young children, they are very difficult to diagnose. That delayed diagnosis often makes the serious injury even more difficult to deal with. Sometimes, a family may spend hundreds of thousands of dollars on hospital bills before doctors are certain about the nature of the problem.
E-Cigarettes, Children, and Design Defects
Since at least 2016, government regulators have been very concerned about the rising number of e-cigarettes marketed directly at children. According to the Centers for Disease Control, over two-thirds of middle and high school students see e-cigarette advertisements. Not coincidentally, the CDC asserts, e-cigarette use has skyrocketed in this age group, from less than 1 percent in 2011 to over 10 percent in 2015.
To make their products even more appealing to children, e-cigarette designers have blurred the line between an ingestible food product and a non-ingestible dangerous product. This design defect may be actionable in court under one of the following theories:
- Strict Liability: Arguably, liquid nicotine is inherently dangerous. It does not matter how careful or careless the manufacturer is. Therefore, the manufacturer may be liable for damages as a matter of law.
- Breach of Warranty: Among other things, the Uniform Commercial Code contains an implied warranty that all products be reasonably safe. Any limitations on this warranty, especially if they limit personal injury damages, may be unenforceable in court. As a result, the manufacturer is usually strictly liable for warranty breaches.
- Negligence: All product manufacturers have a high duty of care. This responsibility includes items like use of high-quality materials, frequent inspections, and most importantly in this case, adequate packaging. If any breach of this duty causes injury, the manufacturer may be financially responsible.
Due to the number of potential victims, claims of this character are often class-action lawsuits. These actions offer victims the opportunity to pool their resources, which often leads to better results.
Tobacco companies may market e-cigarettes to children in the hopes that they will later become smokers. Indeed, the industry relies heavily on the fact that 200,000 teenagers take up smoking every year. That background may lead to a negligent marketing claim. Once again, tobacco companies have a high duty in this area, since they sell products that are health hazards.
These claims take various forms. In general, the victim/plaintiff must establish a marketing or advertising breakdown which directly caused injury. Such a defect could be a failure to:
- Warn about all foreseeable risks, or
- Provide instructions that allow safe product use.
Although it is not likely that children will drink liquid nicotine if it is packaged like a food product, it is certainly a foreseeable risk.
E-cigarette makers have a legal responsibility to sell products that are safe for everyone. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. Home and hospital visits are available.
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