Mathias v. Smoking Everywhere: Federal Judge Certifies Class Action

A federal judge has granted class certification in a lawsuit alleging that consumers relied on false representations by defendant Smoking Everywhere regarding the purported safety of its electronic cigarettes.  See Mathias v. Smoking Everywhere, Inc., No. 09-cv-03434 (E.D. Cal. Oct. 25, 2011) (order granting class certification motion) (available here).  This sets the stage for a potentially sizeable recovery for Californians who bought the $49.95 “starter kit” in reliance on claims that electronic cigarettes are non-toxic and a safe alternative to smoking conventional cigarettes.

The operative complaint alleges that Smoking Everywhere falsely advertised its electronic cigarettes as non-hazardous, and failed to warn consumers that the product contains carcinogens and other toxins.  Id. at 3-4.  The certified class comprises all California residents who bought the Smoking Everywhere product from December 2005 to October 2011, and seeks damages and injunctive relief pursuant to California’s Consumer Legal Remedies Act and Unfair Business Practices Act.  Id. at 1 and Class Action Complaint for Injunctive Relief and Restitution, Mathias v. Smoking Everywhere, Inc., No. 09-cv-03434 (E.D. Cal. filed Dec. 10, 2009).

The nascent but growing electronic cigarette industry—estimated to generate $100 million in annual gross revenues—has also been a target of state and federal government officials.  In August of 2010, Smoking Everywhere settled a lawsuit brought by the Oregon Attorney General, which resulted in Smoking Everywhere altogether discontinuing retail sales in Oregon.  The U.S. Food and Drug Administration has also been involved in litigation around the FDA’s attempts to regulate Smoking Everywhere and other electronic cigarette manufacturers.