The Looming Long-Tail Risk of E-Cigarettes.

• Author: Lalor, William
• Position: FOREFRONT

In July 2007, Dr. Cecile Rose, a pulmonologist with the National Jewish Medical and Research Center in Denver, Colorado, wrote a letter to the U.S. Food & Drug Administration describing a case in which one of her patients was diagnosed with the debilitating lung disease Broncholitis obliterans. Dr. Rose said that the 53-year-old patient appeared to have contracted the disease from approximately 10 years of at-home exposure to diacetyl fumes from microwave popcorn.

By 2007, popcorn lung bodily injury lawsuits pertaining to industrial diacetyl exposures had already been pending throughout the United States for several years and there had been concerns about the true scope and universe of diacetyl bodily injury risks. But the letter crystallized these concerns and marked a turning point of sorts. Weeks after it was published, four large U.S. producers comprising a significant share of the microwave popcorn market announced plans to cease using the chemical diacetyl in their products.

Eventually, hundreds of consumer plaintiffs asserted claims, ultimately creating new legal and financial exposures for supplier, manufacturer and distributor insureds, along with their liability insurers. Today, these exposures persist, including consumer suits invoking cases like those of Dr. Rose's patient.

A NEW GROUP OF DIACETYL RISKS?

As diacetyl-related popcorn lung litigation continues, diacetyl-related liability and insurance coverage may be approaching a new battleground: e-cigarettes. Meant to replicate smoking without the harmful effects of tobacco, an e-cigarette is a device that heats and vaporizes a liquid nicotine known as "e-juice." Along with nicotine, e-juices contain the chemicals glycerin and glycol in addition to chemical, often "food-grade," flavorings. One of these chemicals is diacetyl, which can be used to create a wide range of vaporized aromas.

E-cigarettes have seen a dramatic increase in regulatory attention since 2016, as a patchwork of federal, state and local laws has started to emerge. One focus for the FDA in this respect is young, school-aged users. Last year, the FDA and the Centers for Disease Control and Prevention jointly released findings showing dramatic spikes in youth use of e-cigarettes since 2017. "Youth use of electronic cigarettes has reached an epidemic proportion," FDA Commissioner Scott Gottlieb said in September, when he announced that the agency had issued 1,300 warning letters and fines to e-cigarette retailers...