The lawsuit, filed by plaintiff Joseph Sheppard, alleges that the manual for the Fumizer e-cigarette claims it can "help you quit smoking,"which contradicts other marketing materials that disclaim that any use of the e-cigarette is an aid to quit smoking. According to the lawsuit, the disclaimers are made to avoid U.S. Food and Drug Administration (FDA) regulation.
"These representations are contradictory and hypocritical because [the packaging] asserts Fumizer e-cigarettes are 'neither intended nor marked as a quit smoking aid,'"the complaint states.
Further, the complaint contends that Fumizer misled consumers by referring to healthy smoking, and ignoring studies which show e-cigarettes still contain some of the carcinogens and toxins in tobacco cigarettes, along with additional potentially harmful chemicals.
Sheppard also states in the complaint that vaporizers require users to inhale more deeply compared with traditional cigarettes, which could be harmful. Claims about healthy smoking make consumers feel there are no risks to using the devices, the suit claims.
"There is widespread agreement in the scientific community that further research is necessary before the full negative effects of electronic cigarette use on users' health can be known and that until then, manufacturers, sellers and distributors of electronic cigarettes should not make any representations relating to the safety, health or benefits, if any, of electronic cigarettes,"the complaint states.
Additionally, the lawsuit notes that Fumizer fails to list the ingredients for its products, thereby preventing consumers from being able to make an informed decision regarding whether or not they want to risk inhaling specific chemicals.
"By omitting the ingredients, defendant hides the fact that Fumizer e-cigarettes contain propylene glycol, a product found to cause throat irritation and induce coughing, and thus no longer used by certain of Fumizer' competitors,"the lawsuit states.
The lawsuit also states that Fumizer' claims its devices could be used anywhere, citing cities and counties in California that have banned e-cigarettes and public, along with statements that its vaporizers were top quality. However, the plaintiff' Fumigo 650 Personal Vaporizer allegedly short-circuited, exploded and caused a fire in his home in March, according to the suit.
The complaint seeks unspecified damages for violations of California' Consumer Legal Remedies Act, unfair competition, deceptive advertising and breach of express warranty.
Sheppard is represented by John P. Bisnar, Brian D. Chase and Jerusalem F. Beligan of Bisnar Chase LLP, Timothy D. Cohelan, Isam C. Khoury and Michael D. Singer of Cohelan Khoury & Singer, Michael P. Sousa of Law Offices of Michael P. Sousa APC and Frederick W. Gaston of Gaston & Gaston.
The case is Joseph Sheppard v. Fumizer LLC, case number BC558408, in the Superior Court of California, County of Los Angeles.