NJOY Says E-Cigarette Class Action Should Be Dismissed

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NJOY Inc., the e-cigarette maker, said that the two consolidated class action lawsuits it is facing are wrong to say that it has engaged in deceptive marketing by claiming its e-cigarettes are not as harmful as regular cigarettes because its advertisements are mere puffery.

In its motion to dismiss the third consolidated amended class action lawsuit, NJOY told U.S. District Judge Margaret Morrow that the plaintiffs arguments still fail “as a matter of law and should be dismissed — this time with prejudice.”

NJOY explains in its response to the false advertising class action lawsuit that plaintiffs originally based their argument on the slogan “everything you like about smoking without the things you don’t,” saying that this was the company’s “principle marketing slogan.”

This slogan, they claimed, was NJOY promoting “its e-cigarettes as being without any health risks, because those ‘are among the most important ‘things you don’t like about traditional cigarettes.'”

However, NJOY says that the plaintiffs had to admit that they had not had much exposure to that slogan, and so that slogan is now referred to as “just an example of ‘one of NJOY’s marketing taglines.'”

Instead, “plaintiffs now assert that a variety of harmless, good-humored advertising slogans, that say nothing about health or safety, as well as product packaging that specifically discloses the harm resulting from nicotine use, constitute false advertising that NJOY’s products are ‘known to be generally safe or safer than traditional cigarettes.'”

NJOY claims that “these allegations, however, are divorced from the reality of NJOY’s advertisements and product packaging.”

The NJOY class action lawsuits were filed by plaintiffs Ben Halberstam, Eric McGovern, and Kathryn Thomas.

Thomas alleges that NJOY violated Florida’s Deceptive and Unfair Trade Practices Act, and Halberstam and McGovern allege that NJOY violated California’s Consumer Legal Remedies Act and Unfair Competition Law.

However, Thomas “revealed that she did not see any advertising” for the e-cigarettes.

“As a result, Thomas bases her claim solely on product packaging that makes no representations, but instead contains an extensive warning disclosing the potential health risks of nicotine,” NJOY claims in its motion to dismiss the false advertising class action lawsuit.

Halberstam admitted to seeing NJOY’s product packaging as well as two print ads.

“The first ad, ‘Resolution Solution,’ simply promotes that ‘you can get rid of the smoke and keep the flavor,'” and that “he also saw an ad that tells the reader to ‘Try Something New in Bed,’ but without specifying where or when he aw it,'” NJOY explains.

“Obviously, neither ad makes any purported health claim,” the company asserts.

“As for McGovern , he alleges that in addition to the product packaging, he saw one television ad that uses the phrase ‘Friends Don’t Let Friends Smoke,'” the e-cigarette company says about the class action lawsuit.

“This phraseology, however, could be used to promote any product, and does not make any health claims,” it adds.

In addition, NJOY says that the “extensive” warnings about the health risks associated with its e-cigarette products are included on the product packaging, exceeding what is required by the Food and Drug Administration for e-cigarettes.

NJOY is represented by Paul Gale, Daniel Rashtian, Thomas Prouty and John Gerstein of Troutman Sanders LLP.

The plaintiffs are represented by Stephanie Bartone and Shannon Hopkins of Levi and Korsinsky LLP, Demet Basar and Francis Gregorek of Wolf Haldenstein Adler Freeman and Herz LLP and Jerusalem F Beligan of Bisnar Chase, among others.

The NJOY E-cigarette Class Action Lawsuit is In Re NJOY INC Consumer Class Action Litigation, Case No. 2:14-cv-00428 consolidated with 2:14-cv-00427 in the U.S. District Court for the Central District of California.

UPDATE: On Feb. 3, 2016, the plaintiffs in this NJOY e-cigarette class action lawsuit lost their second bid for certification of a Class.