Robinson Education Center

Robinson Education Center

The Manhattan-Ogden school district could join the first wave of nationwide lawsuits against e-cigarette manufacturer Juul, but the school board wants some more information first.

Assistant superintendent Eric Reid said Wednesday at the board meeting that Eric Barton, a lawyer with Kansas City law firm Wagstaff and Carmel, LLP, and a Manhattan High School alumnus, reached out to the district to start a conversation about having the firm file a lawsuit against Juul on behalf of the school district.

Curt Herrman, board president, said he was hesitant to use taxpayer dollars to pay for a lawsuit that might not be successful. Barton said the firm is working these cases against Juul on contingency, meaning no taxpayer dollars are necessary. The districts only pay if the firm wins its cases, and any fees would come out of a judgement against Juul.

Barton said his firm has litigated several other public health lawsuits, including previous lawsuits against tobacco companies and opioid manufacturers, but the new e-cigarette, or vaping, epidemic has caught the eye of school districts around the nation. Those districts see lawsuits as a way to take a stand and send a message to Juul and other e-cigarette manufacturers, Barton said.

“The litigation that I’m talking about by no means is going to solve the vaping and Juul problem,” Barton said. “It is a serious public and youth health issue right now. But what this litigation does aim to do is both provide a source of pressure on Juul specifically — which has really been the architect of the epidemic that we’re seeing in the public schools right now — but also provide a vehicle for school districts to put in place plans, education, counseling and programs to try to get their students through this addiction crisis.”

While regular cigarette use among teenagers has plummeted over the past 40 years, Barton said e-cigarette use has skyrocketed, particularly after Juul was founded in 2015. The Manhattan-Ogden school district has seen similar statistics, with reported cigarette use down over the past 20 years, according to the annual Kansas Communities That Care survey, an anonymous survey administered to the district’s 6th, 8th, 10th and 12th graders each year.

In comparison, frequent e-cigarette use up to 18% among the district’s high school students last year, compared to 5.4% in 2017, the first year the survey kept track of e-cigarette use.

Barton said much of the recent surge in teen e-cigarette use has been because of Juul’s aggressive marketing toward youth, using many of the same marketing techniques tobacco companies used before the federal government stepped in. He said the company also uses a new form of nicotine salts in its products that are easier to inhale but are also more efficient and addictive, leading to higher nicotine levels and easier addiction.

Although the Centers for Disease Control and Prevention warn against e-cigarette use for anyone, the federal agency says use among teenagers is especially problematic, as teenagers are more prone to neurological changes that could lead to lifelong addictions to nicotine and other drugs. The U.S. surgeon general also has found that nicotine consumption as a teenager can damage parts of the brain that control attention, learning, mood and impulse control.

That’s in addition to the other effects of cigarette and e-cigarette use, such as lung problems, cancer, cardiovascular disease and decreased life expectancy, Barton said. Other potential long-term health issues with vaping are still unknown, given their recent prominence, and the lack of data has meant that today’s teenage users are effectively “guinea pigs” for companies like Juul to test their products on, Barton said.

The relatively quick surge in the vaping epidemic left medical professionals stunned, let alone school officials, Barton said. As e-cigarette use has climbed in recent years, school districts have scrambled to educate students and parents about the negative effects of vaping. Barton said e-cigarette use has become a major distraction and drain of resources on schools, teachers and administrators, who now have to keep watch for the tiny devices that often resemble USB drives and are easily hidden in pencil bags and backpacks.

Administrators also have seen suspensions skyrocket as more kids are caught vaping, Barton said, although there’s also been a shift in thinking of vaping as a problem to be punished to an epidemic to be solved.

“I think more and more schools are starting to see it’s an addiction crisis and health issue, and now we need to figure out how to deal with that and provide resources to kids to actually try to help that addiction,” Barton said.

Those extra efforts have not been cheap, Barton said, and some districts have spent hundreds of thousands of dollars in re-appropriated funds and staff time to monitor for vaping in their schools. But in filing lawsuits against Juul, the districts could not only hold the company responsible for the epidemic but recoup some of those costs.

Barton’s firm has already partnered with several other Kansas school districts to start lawsuits against Juul —including the De Soto, Goddard, Smoky Valley, Olathe, Shawnee Mission, and Blue Valley districts — but those lawsuits are all stand-alone suits, as any initial lawsuit from the Manhattan-Ogden school district would be.

However, those suits could turn into class-action lawsuits if the courts were to agree to classify the collective districts as a class, Barton said.

Although it’s students who have suffered the health effects of the vaping epidemic, Barton said the school districts have standing to sue Juul using the public nuisance legal theory. Under that theory, which courts have accepted in previous lawsuits against opioid manufacturers, any manufacturer who uses deceptive practices to promote addictive products that create negative impacts in communities can be found to bear the responsibility of those negative effects.

In a potential lawsuit, district administrators might have to testify and use staff time to compile statistics and other pertinent data, but Reid said the district already collects most of that data anyway.

The board instructed district staff to collect more information on a potential lawsuit and return to the board with an agenda item on whether or not to proceed with the lawsuit.