Despite the ban on the sale of flavored tobacco products in California, flavored e-vapor products make up nearly 98% of the California market, according to a study commissioned by Altria. The company on Thursday took action to try to curb illegal e-cigarette sales in the state.
Altria Group Inc.’s operating company Njoy LLC has sued 34 manufacturers, distributors and online retailers of illicit disposable e-vapor products sold in California and elsewhere.
In the lawsuit, filed in the U.S. District Court for the Central District of California, Njoy alleges the vapor companies manufacture, distribute, market and sell products that violate California’s flavor ban law, which took effect in December 2022. The products are also illegal under federal law, subject to Food and Drug Administration action and illegally compete against companies that comply with state and federal laws, Njoy claims.
The suit seeks a nationwide injunction against the import, marketing and sale of these illicit products, and compensatory and punitive damages.
“These companies knowingly violate federal and state laws and need to be held accountable,” said Murray Garnick, Altria’s executive vice president and general counsel. “Today there are two markets—one for those who play by the rules and one for those who flagrantly ignore them. We are taking this action because the current state of the illicit e-vapor market is intolerable, and we must see more action from FDA and others.”
The companies named in the suit include Breeze, Elf Bar, EB, EB Create, Esco Bar, Flum, Juice Box, Lava Plus, Loon, Lost Mary, Mr. Fog and Puff Bar. None of these have received premarket authorization from the FDA, Njoy said. In many instances, they have not filed the required premarket tobacco product application (PMTA) or have already received warning letters from the FDA saying their products cannot be sold. Some of the vapor companies are also subject to an FDA-ordered import alert, authorizing U.S. Customs and Border agents to seize their products.
Njoy said it may add additional parties to the complaint and will consider further litigation activity.
Njoy only sells tobacco-flavored Njoy Daily and Njoy Ace e-vapor products in California, the lawsuit said. It sells menthol-flavored Njoy Daily and Ace products outside of the state. Njoy Ace is the only FDA-authorized pod vaporizer device on the market in the U.S. Applications for its menthol-flavored products remain under review.
Flavored disposable vapor products have obtained a significant portion of the market share of sales since 2020, and sales have increased drastically, the lawsuit said. During the same time, the market share and sales volume for tobacco-flavored vapor products, like Njoy’s tobacco flavored vapor products, have fallen significantly, the company said.
Altria commissioned research firm WSPM Group to conduct a study on flavored tobacco product use in California. The group collected 15,000 empty discarded cigarette packs and 4,529 e-vapor product packages from May 1 through June 28 in 10 California cities. Some products came from other states or overseas. Flavored products made up 97.9% of e-vapor products studied, findings showed. Many were from companies mentioned in the lawsuit.
Altria, Richmond, Virginia, acquired vapor maker Njoy in spring 2022 for $2.75 billion.
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