E-cigarette Maker Goes on Trial

and smoking. Joining me its healthcare attorney Harry Nelson of Nelson Hardeman Harry Minnesota is using the theory of public nuisance, a theory that was used against the tobacco industry in the nineteen nineties. Tell us about it. Yeah, so a public nuisance legal theory. It was a theory that actually grew out of cases where there had been some kind of public harm like damage to you know, water sources

and from pollution and things like that. And the idea was that essentially you could hold private parties responsible for the social costs, the costs that they impost on society.

So we've been seeing through the opioid cases of the last few years they attempt to extend that theory against drug makers and pharmacies that allowed easy access, and the state of Minnesota is trying to do the same thing here, essentially to say that Jewels, you know, the e cigarette company, that Altria, the biggest of the tobacco companies, essentially caused great harm to the public by encouraging the sale of

these cigarette flavors to teenagers and to underage consumers. Do you think that the public nuisance theory is a good fit for what it's accusing Jewelove, I think it is a little bit of a stretch. Personally, I think that this issue of underage consumers smoking or engaging in healthy behaviors is a more complicated problem. It's not a clean fit to me that jewel was the entire problem. I think there's a broader question about our consumer culture that

made this product so closely popular with kids. So, while I do think that the marketing practices were reprehensible, I'm not sure that it's a clear line to say that they were the cause of all these problems. I also think it's unclear. We won't know for years what the long term health effects will be of kids starting to smoke in eighth grade, and certainly there's been an issue of teenagers of older teenagers, tenth graders, eleventh graders smoking

that preday e cigarette. Minnesota says in papers that in the fourteen years between two and twenty fourteen Minnesota high schoolers smoking at least one cigarette in the last thirty days dropped from thirty two point four percent down to ten point six percent. Six years later, nineteen point three percent of high schoolers reported having vaped at least once in the last thirty days. Does that make their case about public health or do they need to do much more?

I think that's a helpful fact to them. I just don't know the whole story. I think the reality is like vaping in general has become a more socially acceptable and more popular alternative too smoking. So even as we've seen a decline in general rates of cigarette smoking, you know, with greater awareness that vaping is a slightly healthier choice of an overall very unhealthy activity. You know it's increased. So I think it's helpful. I just don't know. I

don't think it's a clam dunk. Jule and Altria are trying to shift the blame to the state of Minnesota. Minnesota got billions of dollars from tobacco settlements over the last decade, but spent less than one percent on prevention efforts, instead using the funds to bankroll unrelated products like the Minnesota Viking football Stadium. This is a really interesting argument. If you go back to nineteen ninety eight, the various states one something like two hundred and five two hundred

and six billion dollars. I think the state of Minnesota alone got over six billion dollars in the tobacco settlements, with all the big tobacco companies, but including the company that's now Altria right it used to be Philip Morris. And so there was an enormous opportunity for not only Minnesota, but for all of the states to use that money to really create better public health programs, better education programs to reduce smoking and educate people about the dangers of smoking,

and intervene in trends like this. And I think that Jewel and Altria have a good case to make that not only Minnesota, but literally every state in the country basically wasted that opportunity. When we look at what they did with the money, they mostly plugged holes in state budgets and just considered it's sort of a flush fund to be used whenever there was a financi will needs.

It's hard to find any examples in Minnesota. There's no accession of a state that really used the money comprehensively for effective public health related to the danger of smoking. Do Altria and Jewel have the same defense or are they pointing fingers. Jewel is the main target here. Disuel Lab is the company that developed this and marketed this, and they are a victim of their own success with all of the flavors that they came out with, mango

and other things that really appeals to kids. Altria has the misfortune of having been a major investor, I think something like twelve to thirteen billion dollar investment in Jewel. But it's not to me at all clear why Altria is fitting side by side defending this case with Jewel. Frankly, it looks like they are there because they are such a big player in the overall tobacco industry and not

because they were so singularly attached to this product. In fact, Altria has completely divested itself of its position and Jewel, which I think was never more than a small minority percentage. Ironically, Altria has actually invested it in a competing product, Enjoy, which is competing with jewels, and so I'm not clear if their apparence here is more about optics and having you know, the biggest tobacco company in the country so much as related to their actual activity and state of

Minnesota related to eastigs. Also for the deep pocket, yeah, no questions. As a parent of children, I share the concern about the effective, dangerously effective marketing of east cigarettes. But it does seem that Altria is at the table mostly not only for their size and disability, but also for the potential resources that they can add to the pool of funds. So I agree with your comment about them being a deep pocket here. As far as if the jury thinks the state has some responsibility here, is

this a case where the jury can allocate damages. Yeah, absolutely, the jury does have the ability to attribute comparative amount and to assess responsibilities. So yeah, it's a tricky case for Altria because it obviously the goal is to show that this is a bigger, more complex problem that isn't specifically tied to this, but also to try to minimize its share of any damages that are awarded. So what's

the question the jury will have to answer. I mean, the question is really whether Jewel engaged in deceptive marketing

practices that targeted Minnesota youth. And so that's really the claim that's being made, essentially, that there was some kind of fraudulent practice, you know, that there was actually intention to lull kids into taking up vaping in the marketing that they use, rather than this being a case of kids being marketing, you know that was intended for adults, that in fact, the entire strategy of Jewel was to hook a whole new generation of young kids on vaping.

Jewel has faced thousands of lawsuits across the nation, but most have settled, and it said that Minnesota had rejected settlement offers similar to those reached with other states, which provided quote hundreds of millions of dollars to further combat underage use and developed cessation programs in those states. So is this for the good of Minnesota or is this, you know, for making a name and making a statement about these products. I'm just trying to figure out why

they wouldn't settle. Yeah, it definitely is an aggressive strategy here on the part of the state of Minnesota. It seems interesting that the state Attorney General, Keith Ellison is

actually taking the lead in trying this case. He's certainly someone who has a colorful political history nationally, and I do think there's certainly a question of whether there's some grandstanding, you know, whether it's to create a name for him or just to make a statement by taking such an aggressive position on this case rather than following the path

of other states and pursuing a quicker settlement. The State of Minnesota hasn't set a number for damages, but Ellison said that it could be in the ballpark with Minnesota's landmarks seven point one bill million dollars settlement with the tobacco industry in nineteen ninety eight. But wasn't that a bigger case the case with the tobacco industry, and didn't

it go back decades. It's really hard to imagine how the problem of jewel could be taken as equivalent as the nineteen ninety eight tobacco settlement, which was really addressing decades and decades of actually deceptive marketing where the tobacco industry knew how dangerous smoking was to American health and clearly did everything it could to block that information from coming out and to keep pushing a product that it knew was deadly. So the conduct here happened in a

much shorter period of time. I don't think Jewel even entered the market until twenty sixteen, and I think the main period we're focusing on is like twenty sixteen to twenty nineteen. So it seems like this should be ultimately a drop in the bucket compared to the broader tobacco settlement.

And again, it does to me raised questions why it's any general Ellison is taking such an aggressive position here, Not to say that this isn't a problem, but to suggest that it's on par with the whole tobacco crisis seems a bit much. If the state of Minnesota did win here, would it help other states to get leverage to reach settlements? I mean, how would it affect states outside of Minnesota, or you know, the general population outside

of Minnesota. I mean, I think if a jury is receptive and gives Minnesota, give a Jorney General Ellison a multi billion dollars or even a billion dollars settlement here, I think it will embolden other states, and it will concern Jewels and potentially Altria and sort of increase the numbers that are being paid out, which are already significant

and in the hundreds of millions of dollars. So I do think that this case in a sense will either strengthen or weaken the assessments on both sides of what this case is worse and what this harm is worse than what it's going to take settle these cases. So there is exposure here. If Minnesota wins this case, there's going to be more states that are willing to be more aggressive and push for more which is going to

be obviously bad for Joel in Altria. And if Minnesota loses the case, will Jewel in Altria be hesitant to settle these cases? Again? I mean it's more like I think of it a little bit like a stock, right, So if Minnesota loses this case, then the value of the claims that other states and jurisdictions could make against Jewel against Altria will be a little bit lower. And Jewels already shown a desire to settle these cases. I just think it may be slightly more aggressive and settle

for a little bit less. But at the end of the day, it seems to me that these companies have set aside huge reserves, you know, to pay off claims here, not because they agree that there was any deceptive marketing, but simply because it's not a popular position to be defending marketing that clearly impacted kids and drove more kids to vaping. And these companies just need to do what they can to get rid of these cases as efficiently as they can. So I think this case is going

to be significant one way or the other. It's going to make these cases around the country a little bit more are a little bit lessvaluable. Critics of the public nuisance theory say that it allows executive officers like state attorneys general to improperly step in and replace the role of administrative agencies and lawmakers, which should be the ones regulating the industry. Do you agree with that or disagree? I mean, I'm not a stan of the expansion of

public nuisance theory. I think that it played a very valuable role in America when it came to some of the terrible environmental harm that American industry imposed on different parts of the country, where we saw long term, real environmental costs that were imposed. You know, when toxins were spread in particular parts of the country. I think these kind of social behavior oriented public nuisance cases, as in

the case of opioids and here, are really questionable. You can see why it's very exciting to states and to executive leaders. But I agree that the questions of the long term harm and long term responsibility are probably going to be addressed more accurately and with a little bit less passion and uncertainty in other places than putting them before juries. So I agree with that criticism. The trials expected to last three weeks, so we'll find out just

how the public nusance theory works here. You know, this case makes me wonder what's the next issue that we're going to see where Americans engaging in dangerous unhealthy behavior is going to lead to a public nusance theory. I'm still waiting for the sugar industry, you know, for the first public nuisance case food. I don't know where it's going to be. But I think this kind of reflects the trend in American society where, you know, on the one he had is good to in my opinion, that

we're thinking about where the dangers two consumers are. You know, On the other hand, it's not always easy to get right exactly who's to blame, Thanks Harry, that's healthcare attorney Harry Nelson of Nelson Hardeman. The United Nations has released an alarming report on the threat to the world's climate. UN Secretary General and Tone Guiterrez compared climate change to a ticking time bomb and call the report a how to guide to diffuse the climate time bomb. You have

never been better equipped to solve the climate challenge. But we must move into warp speed climate action now. We don't have a moment to lose, and sixteen kids in Montana are not losing any time. They're suing the state for robbing them of a clean and healthful environment guaranteed in the state's constitution, with its energy policy and extensive support of fossil fuels. It will be the first trial involving a constitutional climate case, and it begins on June

twelfth in Helena. Joining me is Michael Girard, director of the Sabin Center for Climate Change Law at Columbia Law School, tell us about the complaint file by these Montana kids. These young people are suing the state of Montana in Montana State Court saying that the state's fossil fuel friendly

policy violate the state constitution. The Montana State Constitution has a cause guaranteeing a right to a clean and healthy environment, and the plaintiffs are saying that the state is violating that right by allowing so much coal and oil and gas throwing. And Montana added that language in nineteen seventy two. Has it done anything since nineteen seventy two to live up to that very little? They are one of the major fossil fuel producing states in the country. What is

the state's response to this? The state says that provision of the constitution does not really mean that they have to do anything differently than what they're doing. They're saying that the young people don't have standing to sue, and most importantly, that it's not the job of the courts to set the state's energy and climate policy. That it's up to the elected legislature and governor. The plaintiffs are kids who have difference stories about how climate change affected them.

That's right. They all have been affected by whether it's extreme heat or rainfall or drought or other kinds of issues, so that they are working to establish that they have been personally affected by climate change. The track, then, I assume, has said that they do have standing. Yeah, so far they may have to make additional showings in court, but so far they have standing, and so we have a trial set for June. Is this trial a first? There have been almost no trials on climate change at all.

This is the first one that is asserting anything like these theories. There was one case more than twenty years ago from Vermont about motor vehicle standards, and another one a couple of years ago in New York about securitious disclosure. But this is the first one that's really getting into the merits of these issues. Why haven't those other cases gone to trial? What stopped them? The other cases have pretty much all been dismissed by the courts before the trial.

The courts have found that there weren't adequate legal bases to bring them, or that it wasn't the job of the courts to decide these kinds of cases. But this is a case uniquely under the state constitution of Montana, and so it comes up in a much different way. But I should add that just a couple of weeks ago, the Supreme Court of Hawaii said that the environmental clause in the Hawaii Constitution required the state to act on climate change that was a legal matter without a trial.

But we're seeing more and more of these state constitutional provisions having real teeth. What kind of testimony do you

expect to hear a trial. I think we'll hear from climate scientists who are brought in by the plaintists to testify that climate change is happening, that is mostly a result of fossil fuel combustion, that those fossil fuels are being burnt because of the policies of the state of Montana in part, and that there are things that could be done to reduce the use and combustion of fossil fuels. There will also be testimony about the negative effects that

these individual children have suffered. We'll see if Montana tries to rebut the scientific evidence. No court in the world really has seriously questioned climate science. We'll see if this is a first would they be able to have, you know, scientists come in and say this is not climate change. They can try. There are a very very small number of scientists to say that, you know, it's a complete opposition to overwhelming scientific consensus. But we'll see what to

what tactics the state tries to pull out. So this case has been nearly a decade in the making. It's been going on for that long. Well, the planning has for it has been going on for some time, and we've seen these cases brought under similar theories going on for quite a few years. The plaintiffs, what kind of relief are they seeking? Well, initially they're seeking a declaration from the court that the policies and actions of Montana

violate the state constitution and are illegal. But beyond that, they're asking the court to require the state to come up with a plan to greatly reduce fossil fuel use and emissions. We'll see how far the court goes. That would be an extraordinary relief. No matter who prevails, it's likely this is going to be appealed to the State Supreme Court. Yes, I think it's likely that whoever loses, the loser will appeal a case to the decision to the state Supreme Court. So what a decision for the

kids in this case have an impact outside Montana? Yes, it would be a very strong signal about the potential role of the courts. We saw a comparable situation a couple of years ago where the Supreme Court of the Netherlands ordered that country's government to greatly reduce greenhouse gas emissions, and that helps spur quite a few similar lasses in other countries around the world. If the plaintiffs win this case, we may see more litigation using similar theories in other

places in the US. You know, I remember the case of Juliana the United States, and that also bit young people, but against the federal government. What happened to that case? Ultimately, the Court of Appeals for the Ninth Circuits, in a two to one decision, dismissed the case, saying that it was not the role of the courts to be setting

energy and climate policy. The plaintiffs have now made a motion to the district court to amend their complaint to seek less traumatic relief, and the court has been considering that motion for about a year. That's a long time to consider emotion. So why do you think it is that children and teenagers are so concerned about climate change? When you think about teenagers, to think about them doing more fun things than worrying about the climate, Well, it's

their future. That's a steak. By the time they get to be old men and women, the climate could be in what much worse shape than it is now? And so they have a particularly strong steak in the future, much more than those of us who won't be around that long. And now let's change the conversation a lot to a tiny island in the Pacific trying to do

something about climate change outside its borders. The tiny Pacific island nation of Anahuatu is trying to get in front of the International Court of Justice in the Hague with the question of what are the legal obligations of the major omitting countries to reduce their greenhouse gas emissions so that the small island nations don't drown. In order to get before the International Court of Justice, it's necessary to have a majority vote of the members of the United

Nations General Assembly. That vote is coming up on Thursday, and it now appears that after several years of campaigning, Banawatu has the votes and it looks almost certain that this motion is going to pass. In the case we'll go to the Hay what impact would a ruling by the Hay have? So they don't have the ability to

order countries to do anything. However, many domestic courts, courts of a lot of other countries have been issuing rulings based on international law and human rights theories of acquiring their countries to do more on climate change. A decision from the International Court of Justice would be the most definitive statement yet about how international law and Newman rights law applied a climate change and it could spur even

stronger decisions by the domestic courts of more countries. To someone looking from the outside at these climate change cases, it seems as if we hear a lot about the cases and then disappointing conclusions for those who want to fight climate change. I mean even you know the Supreme Court last year in the West Virginia EPA case, our climate change activists making headway, or they are making headway,

not enough. But back in two thousand and seven, the Supreme Court, in a case called Masterchusetts versus EPA, said that EPA had the power under the Clean Air Act to regulate greenhouse gases. Based on that, the Obama administration, using the Supreme Court decision, did many things that reduced greenhouse gas emissions. There are lots of others out there. There's not a magic bullet, there's no one decision that is going to solve climate change, but a lot of

these are incrementally adding up to real progress. And are there some states where's working better than others? Well, we certainly see a lot of action in states like California, which has long been the leader, New York, Massachusetts, Washington, all of them are doing much more on climate change than most of the rest of the country. These were not spurred by lasses. These were mostly spurred by the

local political support for for action on climate change. And do you feel that more people get climate change than did let's say, five years ago, More people know about it and are attuned to it. Yes, The polling is clear that a larger percentage of the public is alarmed about climate change and the scientific evidence that's coming out from the ends to that alarm. There are still those who don't believe it or don't believe it's serious, but

that seems to be a shrinking number. And internationally, are you seeing more use of the courts to combat climate change? On Thursday as well, the European Court of Human Rights is hearing two climate change cases, one brought by a group of senior women in Switzerland and other brought by the former mayor of a town in France that's having a lot of c level rights problems. So we're seeing an intensification of the use of the courts around the

world to fight climate change. Thanks so much for being on the Bloomberg Law Show. That's Michael Gerard, director of the Saban Center for Climate Change Law at Columbia Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on

our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Blue, Bomberg dot com, slash podcast Slash Law, and remember to tune in to The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grossow, and you're listening to Bloomberg