US vape brand Njoy sues 34 disposable vape makers seeking damages over illicit sales

US vape brand Njoy, a subsidiary of tobacco major Altria, has filed sweeping litigation against 34 foreign and domestic manufacturers, distributors and online retailers of disposable vape products.

The suit alleges that these companies manufacture, distribute, market and sell products that violate California’s flavor ban law, are unlawful under federal law and subject to FDA action, and illegally compete against companies that comply with state and federal laws.

Njoy seeks a nation-wide injunction against the import, marketing and sale of these illicit products and significant compensatory and punitive damages from the court.

“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.”

Named defendants in the suit include, among others, brands such as: Breeze, Elf Bar, EB, EB Create, Esco Bar, Flum, Juice Box, Lava Plus, Loon, Lost Mary, Mr. Fog and Puff Bar. Domestic defendants include companies doing business in Arizona, California, Delaware, Florida, Michigan, Minnesota, New Jersey, New York and Texas. Foreign defendants are all based in China.

Altria said none of the defendants has received premarket authorisation from the US Food and Drug Administration (FDA). In many instances, they also have not filed the required application for premarket approval.

Several of these companies have already received warning letters from the FDA stating that their products are adulterated and misbranded and cannot be sold without a marketing authorisation. Additionally, some of them are subject to an FDA-ordered import alert authorising US Customs and Border agents to seize their products.

Njoy may add additional manufacturers, distributors and retailers to this complaint and will consider further litigation activity, the company said.

Despite a ban on the sale of flavored tobacco products that went into effect in December 2022, flavored vapour products make up more than 97 percent of the California market according to a recent study commissioned by Altria. Conducted by an independent research firm WSPM Group, the study collected 15,000 empty discarded cigarette packs and 4,529 vape product packages from May 1 through June 28 in 10 California cities.

In August, Njoy has filed a complaint against Juul Labs with the US International Trade Commission, seeking a ban on the import and sale of certain JUUL vape products, including its currently marketed JUUL device and JUULpods.

The complaint alleges that the JUUL products infringe certain patents owned by Njoy. Altria acquired the leading US vape brand earlier this year, soon after its exit from Juul Labs where it held a minority stake.