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E-cigarettes have been on our watchlist of emerging risks for the past several years. A recent outbreak of severe pulmonary disease in the U.S., coupled with reports of deaths suspected to be linked to vaping, have given the issue an even greater focus from regulators and policymakers.

In March this year, the EU Scientific Committee on Health, Environmental & Emerging Risks announced it would assess the risks associated with chemicals in e-cigarettes.

Our Q1 2019 Emerging Risks Update underscored the importance of this issue.  E-cigarettes could, we believe, pose product liability concerns - because of potential unknown health risks associated with their use as well as possible injuries from battery fires, among other things.

Big news

This issue has been grabbing headlines in recent weeks after a spate of reports of illness, injury and even deaths that have been linked to use of e-cigarettes.

The U.S. Centers for Disease Control and Prevention (CDC) confirmed in September that it is investigating possible vaping links to multiple cases of lung injury and several deaths.

According to the CDC, at the time of publishing, there have been more than 1300 reported lung injury cases and  26 deaths across the U.S. that may have links to vaping.

The CDC says it is working with the U.S. Food and Drug Administration (FDA), state and local health departments and other bodies, to investigate this multistate outbreak of severe pulmonary disease.

The CDC said the investigation was ongoing and that it had not yet identified a cause, but that all the reported cases have a history of using e-cigarette products. It advised anyone experiencing symptoms reported by victims of the outbreak to seek medical care promptly. Those symptoms include a cough, shortness of breath, chest pain, nausea, vomiting, diarrhoea, fatigue, fever and weight loss.

According to the CDC, more than three-quarters of the cases under investigation may be linked to the use of tetrahydrocannabinol (THC), a psychoactive constituent of cannabis, that can be inhaled via e-cigarette devices.

Youth use and future liability?

An uptick in the use of e-cigarettes among young people is an issue that we are monitoring closely to assess the future liability landscape.

In April, the FDA announced it was investigating reports that some users of e-cigarettes, especially youths and young adults, had experienced seizures after use.

The “epidemic of youth e-cigarette use” has been cited by Surgeon General of the United States Public Health VADM Jerome Adams as an issue of “great concern.”

In 2018, according to the CDC, one in five high-school students and one in 20 middle-school students in the U.S. used e-cigarettes. 

In the UK too, there are concerns that the use of e-cigarettes among young people might lead to future health problems; anecdotal evidence suggests that UK adolescents who use e-cigarettes are six times more likely than their peers to start smoking traditional cigarettes.

Flavours

Many e-cigarettes are flavoured – part of what makes them appealing to young users, experts say. A study by scientists at Harvard found that the chemical diacetyl, which is known to be associated with the lung disease Bronchiolitis Obliterans, was found as an undeclared ingredient in more than 75% of e-cigarettes they tested. A lack of knowledge about the effects on human health of inhaling certain chemicals within e-Liquids has been raised by experts as a cause for concern.

A separate Harvard study found that two of the most widely used flavourings may impair the function of cilia – protuberances on the respiratory tract that help keep airways clear of mucus and dirt.

The scientific jury is still out about potential links between e-cigarettes and lung disease and injury. But in addition to health concerns, there are potential liability issues about the integrity of e-cigarette devices themselves – is there a chance that they could overheat and explode, for example? Is there a potential for third-party injuries? 

Regulator focus

Regulators across the world have been paying close attention to the sale of e-cigarettes. At the time of writing, some countries, including Japan and Brazil, have banned the sale of e-cigarettes, and others may follow.

In recent months, several U.S. states have banned the sale of flavoured e-cigarettes, while the city of San Francisco has banned the sale of e-cigarettes altogether.   And last month, U.S. President Donald Trump announced that his administration would ban the sale of flavoured e-cigarettes.

In the UK, the Tobacco Products Directive came into force in 2016, introducing minimum standards for the safety and quality of all e-cigarettes and refill containers. The directive requires that a certain standard of information be provided to consumers so they can make informed choices. The rules also are intended to promote an environment that prevents children from starting to use the products.

The regulations introduced restrictions on the size of e-cigarette tanks, the maximum volume of nicotine-containing e-liquid for sale in one refill container, the nicotine strength of e-liquids, and a ban on certain ingredients, among other things.

The regulations also introduced new labelling requirements and warnings about potential health side effects.

What next?

Insurers, brokers, regulators and public health bodies will continue to monitor this topic closely.

A direct link between using e-cigarettes and lung injury and disease may not yet have been conclusively made. But the liability landscape never remains constant. We will keep a close eye on these emerging risks and work with our brokers and clients to better understand, manage and mitigate them.