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Electronic Cigarettes

By Ronald J. Levine and Gabrielle C. Wilson

Electronic cigarettes, or e-cigarettes, have gained widespread popularity in recent years as an alternative to traditional cigarettes. While the traditional variety use burning tobacco to create smoke that is inhaled, e-cigarettes are battery-powered devices that vaporize a liquid containing nicotine (and may also contain propylene glycol, vegetable glycerin, and flavorants) that the consumer inhales without the combustion involved in traditional cigarettes. While e-cigarette manufacturers and distributors promote the potential advances of this new technology over traditional cigarettes, the degree to which e-cigarettes are safe is the topic of great debate, and the source of litigation.

However, as e-cigarettes are a relatively new development, state and federal regulations and case law are in a state of evolution, as many of the claims made against designers, manufacturers, distributors and sellers of e-cigarettes are in their infancy. Federal regulations governing e-cigarettes have not been finalized. The U.S. Food and Drug Administration (FDA) has promulgated proposed rules that are in the review stage and have yet to be adopted. These proposed regulations could become a barrier to entry into the business, and will set new requirements for those companies currently in the business. But because federal regulations have yet to be finalized, companies in the e-cigarette business cannot point to final regulations to bar state claims, and must be ready to defend individual suits or class actions.

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