The vape industry will soon be under attack. With a flurry of illnesses and deaths across the nation, and with cities and states banning vape products outright, it is only a matter of time before plaintiffs attorneys file thousands of lawsuits.

People are becoming seriously ill from an unknown vape-related lung disease. Investigators believe the cause may be black-market e-liquid containing vitamin E acetate, a hazardous substance when consumed as an aerosol.

Yet, while these lung injuries are likely caused by black-market e-liquid, you can surely expect plaintiffs to sue all applicable vape manufacturers under a theory of strict products liability — for their alleged failure to warn about the dangers associated with another manufacturer’s e-liquid solution.

Given the above, this article presents the following question of California law: Can a vape pen manufacturer be held liable for injuries caused by another manufacturer’s e-liquid solution or those e-liquid solutions sold on the black market? As explained below, the answer to this question must be a resounding “no.”

The Product

Vape pens or e-cigarettes are battery-powered devices that imitate tobacco smoking. Vape pens produce an aerosol by heating a liquid solution that users inhale, an activity commonly known as “vaping.”

While designs vary greatly, all vape pen devices contain an electric heating element (an atomizer) that vaporizes a liquid solution, and a cartridge that holds the liquid solution. Generally, these liquid solutions contain a mixture of propylene glycol (which increases flavor), vegetable glycerin (which increases vapor), nicotine or cannabinoids, and various flavorings.

The Problem

Thousands of people in the United States have been injured by a mysterious lung disease, allegedly linked to vaping, and generally described as “vape-associated lung injury.” According to the U.S. Centers for Disease Control and Prevention, there have been more than 1,000 lung injury cases associated with vaping throughout the United States, and 18 deaths are confirmed in 15 states. Medical researchers believe those injured are suffering from exogenous lipoid pneumonia, a rare form of pneumonia typically associated with elderly people.

While the exact cause of vape-associated lung disease is unknown, investigators are focusing their attention on black market e-liquid containing vitamin E acetate. It is well-known in the cannabis industry that vitamin E acetate is used on the black market to dilute THC oil in e-liquid, so that underground dealers can stretch their product.

While vitamin E acetate is a legal nutritional supplemental, and not harmful when ingested in pill form, health officials believe the vitamin can be hazardous when consumed as an aerosol. Once heated in a vape pen, vitamin E acetate can break down chemically as an aerosol, return to its original state in the lungs after being inhaled, and coat the inside of the lungs with oil droplets — which has unknown medical risks.

The Defense

With the above as background, if vape-associated lung illness is in fact caused by vitamin E acetate, and is present only in e-liquid solutions sold in the black market, vape manufacturers will have a strong defense in litigation under California law.

O’Neil v. Crane Co.[1] is now the vape industry’s biggest friend. There, the issue was stated as follows: “When is a product manufacturer liable for injuries caused by adjacent products or replacement parts that were made by others and used in conjunction with the defendant’s product?”[2]

O’Neil involved a plaintiff who developed mesothelioma as a result of his exposure to asbestos-containing dust on an aircraft carrier while in the United States Navy. The defendants were manufacturers of valves and pumps used in the steam propulsion system of the aircraft carrier. The Navy required the defendants to use asbestos-containing materials to insulate their valves and pumps.[3]

Although the defendants complied with the Navy specifications, they did not manufacture the asbestos-containing insulation, and there was no evidence the defendants’ valves and pumps required asbestos-containing insulation to function properly. Beyond that, the original insulation used by the defendants had been replaced by other asbestos-containing insulation (manufactured by other third-parties) by the time the plaintiff was exposed to it.[4]

Nevertheless, the plaintiff’s family brought a failure-to-warn claim against the defendants, among other claims, alleging that although the plaintiff was not exposed to asbestos released from the defendants’ products, the defendants had a duty to warn the plaintiff of the dangers of asbestos, because their products originally contained asbestos-containing insulation — and that it was foreseeable their valves and pumps would be replaced with other asbestos-containing insulation which, in turn, would harm the plaintiff.[5]

The California Supreme Court held that a manufacturer does not have a duty to warn about the dangers arising from another manufacturer’s product — even if it is foreseeable that the products will be used together — unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.[6]

The court reasoned that, although manufacturers are held liable for their failure to warn of dangers known to the scientific community at the time they manufactured and distributed their own products, California law has never extended a manufacturer’s duty to warn about the hazards arising exclusively from other manufacturers’ products.[7]

Further, although it was foreseeable that the defendants’ products would be used with replacement materials containing asbestos insulation, the court held that “the foreseeability of harm, standing alone, is not a sufficient basis for imposing strict liability on the manufacturer of a nondefective product, or one whose arguably defective product does not actually cause harm.”

“[A] contrary rule,” the court noted, “would require manufacturers to investigate the potential risks of all other products and replacement parts that might foreseeably be used with their own products and warn about all these risks.”[8]

O’Neil supports the conclusion that vape manufacturers owe no duty to plaintiffs to warn about the dangers associated with another manufacturer’s e-liquid solution — and cannot be held liable for the harm caused by another manufacturer’s e-liquid product. While O’Neil is subject to two important exceptions, vape manufacturers should look to the case as a shining light in the expected morass of future litigation.