Education Week - March 4, 2020 - 13

In California alone, Ravidpudi
said he is still surveying districts
on costs and declined to give a
ballpark figure. But it's clear that
it could be substantial. Lawyers in
the Jefferson County, Miss., lawsuit
estimated that, if that case is certified as a class action to cover all of
Mississippi's districts, claims would
amount to more than $5 million.
The districts' participation in the
litigation represent an evolution in
how local government is viewing
both the costs and its role in responding to public health crises.

Defendant knew or should have known that its marketing, distribution,
and sales practices did not adequately safeguard minors from the sale and/or
to
distribution of e-cigarette devices and JUULpods and, in fact, induced minors
purchase JUUL products.
Labs, Inc.
-The School Board of Palm Beach County, Florida v Juul

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Legal Strength
A landmark 1998 tobacco master
settlement benefited states but frustrated county and municipal governments after states spent only a small
share on treatment and prevention
programs, noted Kathleen Hoke, a
professor of law and the director of
the Network for Public Health Law,
Eastern Region, at the University of
Maryland's law school. And so during
subsequent litigation, such as the ongoing opioid litigation, municipalities
often beat states to the courthouse.
Similarly, districts are now asserting
their muscle over vaping, she said.
What isn't clear is whether courts
will be receptive to the districts' arguments. There's no question schools
are spending thousands to respond to
addicted students' needs, Hoke said,
but what the courts will need to determine is whether JUUL and other
vaping manufacturers are directly
responsible for that harm, she said.
"They are going to say they have
abided by all the federal laws and
state laws that have existed, and have
complied in the regulatory scheme
and can't be liable for this tertiary impact," Hoke said. "That's the strongest argument for JUUL, and it's a
good one."
But the districts have powerful
arguments, too, notably their contention that companies deliberately
aimed to hook young people on vaping. They have pointed in particular
to JUUL's marketing, including the
use of young, attractive social media
"influencers" to promote the products, and its creation of candy- and
fruit-flavored vapes.
Several of the lawsuits also reference an anti-vaping curriculum JUUL
allegedly encouraged schools to use
that, attorneys for the districts argue,
actually downplayed vaping's health
risks. (JUUL contends that it did not
market its products unlawfully towards youth and has pointed out that
it voluntarily took fruit- and candyflavored vape flavors off the market.)
"I don't think it's a slam dunk on
either side," Hoke said.
Lynn Rossi Scott, a lawyer at the
Fort Worth, Texas, law firm Brackett
& Ellis, agreed the legal questions are
open ones.
"I do see this is a growing trend,
and I think it's just going to take the
first case that actually gets before
a judge to make a determination
whether or not a district has standing," said Rossi Scott, who has not
read the litigation.
"I liken this to the asbestos cases
from many years ago, where it was

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very clear that the school districts had
standing because they had to conduct significant remediation efforts
in their schools to remove asbestos or
seal asbestos. There were very significant damages. These cases, I think,
are a little more speculative, and a
little more difficult to prove damages.
But let's wait and see."
Neither Hoke nor Rossi Scott is involved in any of the cases.
As with any civil litigation, higher
numbers of litigants amp up the pressure on companies to reach a settlement. And there are signs that interest could be growing.

signed as an alternative to suspending students who are caught with
drugs or alcohol, in which both parents and students participate.
He's planning to discuss with his
school board whether to join a lawsuit.
Joelle Rossback Dahl is the cofounder of Advocates for Clean Teens,
a parent-advocacy group for teens with
substance abuse in Boulder, Colo.,
which worked with the Boulder Valley
district on many anti-vaping efforts,

including the passage of several antivaping ordinances last year. Dahl, who
has watched a fellow parent struggle
to help their child quit vaping, thinks
the district should join the litigation.
"At the end of the day, this isn't a
school problem, this isn't a parent
problem," she said.
"This is a Big Tobacco-and-FDAhaving-allowed-this problem. ...It's
not the school's fault, and it's not parents not doing their jobs.

"The best of the parents can have
kids who are vaping. It just needs to
be a holistic effort-the city, the community, the schools, the medical
community, you name it," she continued. "But these kids have been
swindled by Big Tobacco, and it's really, really disheartening."
Librarian and Data Specialist
Maya Riser-Kositsky contributed
research to this report.

More to Come?
Vaping was enough of a priority for
districts that it was a topic of a session
at the recent national conference for
AASA, the School Superintendents
Association, at which Mark P. Chalos, an attorney with Lieff Cabraser
Heimann & Bernstein, whose firm
was named as one of four co-lead
counsels for the federal multidistrict
litigation, spoke.
Chalos expects more lawsuits to be
filed, but he thinks school boards, superintendents, parents, and district
officials are still in the early stages of
understanding the impacts of vaping.
"I would expect that unless we can
stem the tide of the vaping crisis, we're
going to see more children vaping, and
more teachers and school administrators and parents will become aware of
it," Chalos said. "Whether that results
in more school boards or parents or
children participating in the civil justice system remains to be seen."
Indeed, at the same conference,
some superintendents worried they
are underestimating just how prevalent it is in their schools-with several
acknowledging they could not distinguish vaping devices from a random
assortment of technology bric-a-brac,
including a USB drive and an Amazon Fire Stick.
"My realization with that session
was that we've not even scratched
the surface. It's really scary to think
about the many devices out there
we've not even seen or captured,"
said Tony Sanders, the superintendent of the U46 district in Elgin, Ill.
His district has already started
picking up, at $24,000 annually, the
full cost of an online program de-

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Education Week - March 4, 2020

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