On June 17, the Ogden School District joined over 300 others across the country to become part of a class-action lawsuit against e-cigarette maker Juul Labs.
Provo City School District also joined the case in its board’s meeting on June 22. Both districts voted unanimously to enter the class.
Currently, they are the only two districts in Utah signed on to the national suit — though an attorney with law firm Kirton McConkie said in a written statement on July 13 that they expected other school districts in the state to join as well.
“The goal of vaping and Juul, the stated goal, was to help people transition from cigarettes to something less harmful. But in the state of Utah, twice as many children under 18 are vaping as adults. It has been, unfortunately, a huge hit with the illegal, underage crowd,” said Kirton McConkie’s Joel Wright in his presentation to the Ogden School Board
The case was filed in the U.S. District Court of the Northern District of California and is presided over by federal Judge William H. Orrick, and the trial is scheduled to begin in March 2022. Juul previously requested that the case be dismissed, which was denied by the judge in October 2020.
The lawsuit is run through Frantz Law Group in California, though the Utah districts are also represented in the case by Kirton McConkie, of Salt Lake City. According to William Shinoff of Frantz Law Group, joining the lawsuit comes at no financial risk to the school districts.
When asked by Provo School Board member Jennifer Partridge if there are any potential risks to joining the suit, Shinoff called the three to five hours it would take to fill out the questionnaire as a potential downside — noting that the time is also an opportunity for members of the school district to get better informed about Juul and the case.
According to OSD Business Administrator Zane Woolstenhume, the decision to enter into the lawsuit was straightforward.
“The board of education of Ogden School District joined in this class action suit because vaping (is) an increasing problem and concern in the district,” he wrote in an email to the Standard-Examiner. “By joining in the class action, we hope to draw greater public awareness to the problem and, assuming the action is successful, use any proceeds therefrom to install more vaping detection systems in the schools (then) provide other supports to mitigate the problems associated.”
At the June 3 Ogden School Board meeting where the lawsuit was discussed, then-Executive Director of Secondary Schools and current Superintendent Luke Rasmussen updated the board on the status of vaping in Ogden schools and the effort administrators put in to halt the practice in schools. Rasmussen called it “a constant issue the administrators are dealing with.”
Board member Arlene Anderson asked the rest of the board if there needs to be a district policy on what to do when students are found to have vaping devices on school grounds. Wright replied that, in accordance with state law, the devices can be confiscated by teachers and administrators.
Juul, recognizable for sleek its designs, became the fastest company to ever reach a valuation of $10 billion, according to Wright. He added that the company holds over 60% of the market and that 97% of the vaping done by underage people is with flavored pods like mango or creme brûlée.
Joining the class action was discussed for Provo School District at its board meeting on June 8. The hearing included an explainer on vaping presented to the board and information about its specific health risks. Shinoff, the attorney leading the class, told board members that Juul does not fully inform customers about its products’ nicotine content. He alleges that each Juul pod is the equivalent of two packs of cigarettes.
“This is a $10 billion-plus company that’s not paying for the harm that it causes. This is a chance for this school district, and the others, to get the resources they need to have vaping detectors, to have counselors and to have other resources to help slow down and — as much as possible — stop this growing epidemic,” said Rod Andreason, an attorney with Kirton McConkie, in his presentation to the school board.
The vaping detectors were specifically mentioned by Shinoff to the Provo School Board. The goal would be to get the $3,000-$5,000 devices in classrooms, bathrooms and hallways. They work by detecting chemical changes in the air. School districts across the country have used vaping detectors with varying degrees of success, according to Wired.
In the 2019 SHARP survey done by the Utah Department of Human Services, around 16% of Utah 12th graders self-reported that they engaged in vaping within the previous 30 days. Approximately 2.3% of students in the same class reported smoking cigarettes.
Attorneys in the case for the prosecution will be paid on a contingency fee. According to Andreason, payment would be made to Frantz Law Group and other attorneys out of any potential recovery. “If nothing is recovered then nothing is paid,” he said.
In April, Judge Orrick allowed for the addition of RICO claims in the present-day lawsuit against Juul. RICO, the Racketeer Influenced and Corrupt Organizations Act, has been used in criminal and civil trials to increase penalties on defendants. Juul is partially owned by Altria Group, the parent company of Philip Morris USA, which was found liable under the RICO Act in 2006 for hiding the health risks of smoking.
The company did not respond to a request for specific comment but includes a statement regarding underage use of the products on its website.
“No one underage should use JUUL products or nicotine in any form. Data in the U.S. show rates of underage use of our products that are unacceptable. We are working to reverse this trend by focusing on restricting access to our products and limiting appeal of our products.”
Shinoff told the Ogden School Board he expects the class to nearly quadruple by the end of the summer.
Toward the end of the attorneys’ presentation, Ogden School Board member Nancy Blair told her colleagues of discussions with her granddaughters about the lengths students go to to vape in class — everything from concealing vape pens in their sleeves to pushing the vapor clouds underneath their desks.
“I was just dumbfounded. They said, ‘No it’s going on every day, every class,’” she said. “We do have a problem.”