A consumer class action lawsuit has been filed in the U.S. District Court for the Southern District of New York against EVO Brands, LLC and PVG2, LLC, both doing business as Puff Bar. The lawsuit alleges that Puff Bar violated state consumer protection laws by engaging in deceptive marketing practices aimed at youth, and by misleading consumers about the legality and safety of their synthetic nicotine e-cigarettes.
In addition to the maze of regulatory requirements that govern the tobacco and nicotine industry, companies must keep in mind that state consumer protection laws provide powerful avenues for private plaintiffs and state governments to challenge tobacco and nicotine companies’ sales and marketing efforts.
Summary of Allegations
- Targeting Youth. The complaint alleges that Puff Bar aggressively marketed its products to young people, despite it being illegal to sell these products to individuals under the age of 21 in all states. The marketing strategies include the use of appealing flavors and advertisements that resonate with young people.
- Misleading Nicotine Content. Puff Bar labels its products with “5% nicotine,” which the complaint states is ambiguous and misleading. Consumers are led to believe that the nicotine content is low, whereas in reality, the nicotine levels are comparable to two to three packs of traditional cigarettes.
- Tobacco-Free Claims. The products are marketed as “tobacco-free,” which misleads consumers into thinking they are safer than tobacco-derived nicotine products. The complaint asserts that these products pose significant health risks similar to those associated with tobacco.
- Evading Regulations. Puff Bar has allegedly exploited regulatory loopholes to continue selling its products. Initially, it marketed its products as disposable to avoid FDA enforcement against flavored vape cartridges. Later, Puff Bar switched to synthetic nicotine to evade FDA jurisdiction over tobacco products.
Legal Claims
- Violation of New York General Business Law § 349. The complaint claims that Puff Bar’s deceptive marketing practices violate New York’s consumer protection laws, which prohibit deceptive acts and practices.
- Violation of New York General Business Law § 350. The complaint also alleges false advertising under New York law, arguing that Puff Bar’s marketing is misleading in material respects.
- Violation of State Consumer Protection Statutes. The lawsuit extends to violations of consumer protection laws in multiple states, asserting that Puff Bar’s practices are unfair, false, misleading, and fraudulent.
- Breach of Implied Warranty of Merchantability. The complaint argues that Puff Bar breached the implied warranty by marketing its products as “tobacco-free,” misleading consumers about the safety and health risks associated with the products.
Relief Sought
The plaintiffs seek various forms of relief, including:
- Certification of the proposed class and subclass;
- Monetary damages, including actual, statutory, compensatory, and punitive damages;
- Injunctive relief to prevent further misleading marketing practices;
- An order for Puff Bar to notify class members of the lawsuit; and
- Reimbursement of legal costs and expenses.
Why This Case Matters
The FDA prioritizes enforcement against companies marketing the following types of electronic nicotine delivery systems (ENDS) without FDA premarket authorization:
- Any flavored, cartridge-based ENDS (other than a tobacco- or menthol-flavored ENDS);
- All other ENDS for which the manufacturer has failed to take (or is failing to take) adequate measures to prevent minors’ access; and
- Any ENDS that is targeted to minors or whose marketing is likely to promote use of ENDS by minors.
This class action lawsuit, however, serves as a reminder that tobacco and nicotine product companies are also subject to generally applicable state laws that provide an avenue for state governments and private plaintiffs to seek monetary and injunctive relief for alleged violations. This case is worth monitoring because, if successful, it is possible that other private plaintiffs or states adopt a similar legal strategy to halt the sale of certain tobacco or nicotine products.