Minnesota Now with Cathy Wurzer

Jury selection begins in Minnesota lawsuit against e-cigarette company Juul

A woman buys refills for her Juul at a smoke shop
A woman buys refills for her Juul at a smoke shop in New York in Dec. 2018. The e-cigarette maker Juul Labs said on Nov. 7, 2019, that it will halt sales of its best-selling mint-flavored vaping pods.
Seth Wenig | AP Photo

Jury selection begins Monday in the state of Minnesota’s lawsuit against e-cigarette company Juul and tobacco giant Altria, which used to own part of Juul. Out of dozens of states that sued Juul beginning in 2019, Minnesota is the only one that did not settle.

It is arguing that the companies created a public nuisance by deceiving young people to get them addicted to tobacco.

The lawsuit says the number of Minnesota high schoolers who had smoked in the last month almost doubled between 2014 and 2020 — increasing from 10.6 percent to 19.3 percent. In court documents, Juul and Altria argue it’s the state’s job to address the rise in vaping and tobacco use.

Attorney Willow Anderson is with the Public Health Law Center at the Mitchell Hamline School of Law. She’s watching the trial at the Hennepin County District Court and she joined MPR News host Cathy Wurzer to talk about it.

Use the audio player above to listen to the full conversation. 

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Audio transcript

[MUSIC PLAYING] INTERVIEWER: Jury selection begins today in the state of Minnesota's lawsuit against e-cigarette company JUUL and tobacco giant Altria, which used to own part of JUUL. Out of the dozens of states that sued JUUL beginning in 2019, Minnesota is the only one that did not settle.

The Minnesota Attorney general's office argues that the companies are guilty of, among other things, deceptive marketing targeting youth. The lawsuit says the number of Minnesota high schoolers who had smoked in the last month almost doubled between 2014 and 2020, increasing from about 10% to 19.3%. In court documents, JUUL and Altria argue it's the state's job to address the rise in vaping and tobacco use, not theirs.

Attorney Willow Anderson is with the Public Health Law Center at the Mitchell Hamlin School of Law in the Twin Cities. She's watching the trial at the Hennepin County District court today. She's on the line. Welcome. Thank you so much for taking the time to talk with us.

WILLOW ANDERSON: Oh, Thank you for having me.

INTERVIEWER: As I mentioned, Minnesota is the first state to go to trial against JUUL. Why is Attorney General Ellison's office taking this route? They could have accepted a settlement.

WILLOW ANDERSON: Great question. As you know, and as you said in your introduction, about 33 states and territories already settled. And the state of Minnesota said no. It's really about keeping its secret documents. The company wants to keep its documents secret. By taking the case to trial, those documents become public.

It's about no enforcement mechanism. JUUL, in these settlements, basically would be its own keeper. And the state of Minnesota said, we don't think that's fair. And then finally, those other cases, they settled for about $438 million, which sounds like a lot of money. But that ends up to be less than $3 per capita. And the state of Minnesota has an interest to recoup some of its costs.

INTERVIEWER: What two or three basic issues does this case come down to?

WILLOW ANDERSON: What is the fight about? JUUL was engaged in some marketing. They bought ads, for example, on Cartoon Network and other youth sites. This is very similar to the big tobacco cases of the 1990s, which resulted in the 1998 Master Settlement Agreement.

Really, this is the same issues. But they're using a new product, vapes. And so under this new scheme with this new delivery service, they're saying that all of those agreements that applied about marketing and protections for youth shouldn't apply, that somehow, those are exempt. And so really, it's the same issues. But it's a new product.

INTERVIEWER: And of course, as you mentioned, gosh, I had the chance to cover the tobacco trials. And because of the trials, all that secret information that big tobacco was trying to keep secret was, of course, made public. So there are some ties here, obviously.

WILLOW ANDERSON: That's exactly right.

INTERVIEWER: I'm wondering, the state is suing Altria. And while JUUL is widely recognized as the brand that popularized vaping, Altria bought part of the company, but then lost most of its stake because of these lawsuits. So why is Minnesota still suing Altria?

WILLOW ANDERSON: Well, Altria is the largest tobacco company in the United States. It was formerly called Philip Morris. It owns Marlboro. And it is the largest tobacco company in the United States. To the degree that Altria was an investor, it had about 35% of JUUL.

It appears that it is now changing its vaping strategy and recently just purchased a large share of NJOY, another vaping company. So it's kind of like a game of Whac-A-Mole. It looks like these lawsuits against JUUL have been successful. There's been over 5,000 lawsuits, which were settled in multidistrict litigation. And that's in addition to the 33 states and territories that have sued.

And so while those lawsuits may be successful in getting JUUL to curtail its marketing to youth and other deceptive trade practices, it appears that Altria might be just shifting its strategy to a new company.

INTERVIEWER: Can I ask you about a strategy here that, we're going to be hearing about during this trial? The state is using a similar argument to one used against opioid manufacturers, this public nuisance argument. Can you explain what that is? And what are the advantages of that legal strategy?

WILLOW ANDERSON: Yes, it's very interesting. And that's one difference from the cases from the 1990s against big tobacco. We saw in August 2019, for example, a judge in Oklahoma ruled that Johnson & Johnson intentionally played down the dangers and oversold the benefits of opioids. And that pharmaceutical giant was ordered to pay $572 million in damages for marketing harmful drugs that fueled the nation's opioid crisis.

And the cause of action in that case was public nuisance law. And that's the cause of action partly that the state of Minnesota is also bringing here in the case of JUUL's vaping.

INTERVIEWER: The companies are arguing that Minnesota has enough money from the tobacco lawsuits the tobacco taxes and settlements to handle the problem of youth vaping but didn't do its job. I'm wondering what the jury might think of that argument.

WILLOW ANDERSON: Well, the jury is comprised of Minnesotans, as you know. And for its part, the tobacco industry, the JUUL is stating a truth. The state collected over $840 million in tobacco-related settlements and more and continues to receive those payments. And by a lot of estimates, the state is spending less than 1% of that money on prevention and cessation efforts.

So while that may be true, it seems a bit disingenuous to say that it was the state's fault for not preventing JUUL from marketing its deceptive product to youth. So I leave that to the jurors. That will be their decision. And that's what this case really comes down to. We have about a three-week jury trial, it looks like. And starting today, they're selecting those jurors. But ultimately, that would be a question for the jurors.

INTERVIEWER: And opening statements tomorrow, which should be interesting. I know you're watching this case on behalf of Mitchell Hamilton's Public Health Law Center. What are you going to be looking for?

WILLOW ANDERSON: Well, I think we're going to see some really good trial lawyers. I have to be honest, I spent 20 years litigating before I came to the Public Health Law Center. And so I think we'll see some high quality arguments from both sides. So I'm looking forward to seeing the skill and the expertise of the attorneys.

They know what they're doing. We have a judge who is really even-keeled. And she seems to have tight control of her courtroom. I've heard that she's allowing each party just one hour for voir dire or jury selection. And that that jury, the estimation of the plan is that jury will be selected today, which is very fast. But it shows the level of expertise and the skill coming in.

When you look at the courtroom, I mean, on each side, I think at counsel table, you've got at least six attorneys. But then in the gallery, it seems like dozens more. So this is sort of a legal-- it's the World Series of law on the 18th floor of the Hennepin County District court right now.

INTERVIEWER: It'll be interesting to see what aspects of this case, as it relates to public health, you'll be focusing on.

WILLOW ANDERSON: As it relates to public health, I mean, the state's JUUL lawsuits presents an opportunity to dedicate new revenue to tobacco prevention and treatment. And this is an opportunity to help recoup some of those costs. What we've seen in the past is that big tobacco, they want to privatize the profit. So they want to take all the profits. But then the state of Minnesota is left holding the bag and paying the bill for the extraordinary, excessive health care costs caused by nicotine addiction.

The annual cost of smoking in Minnesota, according to the Minnesota Department of Health, is estimated to be over $7 billion. That's both in excess health care costs and in lost productivity. And so you can see why $3 per person really isn't enough to recoup the costs that this epidemic has caused our state.

INTERVIEWER: All right, well, I'll let you get back to what you're observing there in the courtroom. Thank you so much, Willow Andersen. We appreciate your time.

WILLOW ANDERSON: Thank you. My pleasure.

INTERVIEWER: Willow Andersen is the staff attorney with the Public Health Law Center at Mitchell Hamlin School of Law.

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