PHOENIX — Arizona Attorney General Mark Brnovich filed suit Tuesday against two companies that make vaping products charging that they have illegally targeted teens and mislead consumers about the amount of addictive nicotine in their products.

Brnovich charges that Juul Labs and Eonsmoke “appealed to, targeted, and exploited a generation of youth.”

In the case of Juul, the nation’s largest vaping firm, he cited ads that he said feature “young, attractive women in suggesting or casual and fun poses.” Brnovich also said the pods marketed by Juul dispense more nicotine than cigarettes but are designed to be less harsh, a tactic he said that is aimed at getting young people addicted.

For Eonsmoke, Brnovich said the company used social media accounts to find young customers. And he said the company actively marketed flavors like sour apple, pink lemonade and donut cream, which he said “any reasonable person would know would appeal to existing or potential vape users below the age of 18.”

All that, he said, is a violation of the state’s Consumer Fraud Act.

There was no immediate response from either company.

The lawsuits come after the U.S. Food and Drug Administration has raised the age for the sale of vaping and other tobacco products to 21. That agency also outlawed the sale of most flavors.

Even Brnovich acknowledged that both companies halted many of the practices cited in the lawsuit, practices he wants a state judge to enjoin the firms from engaging in in the future.

But he denied that the lawsuits — and the press conference to announce them — were simply designed to generate publicity for him and his office. And Brnovich brushed aside the FDA directive.

“I’m not going to rely on Washington, D.C. to solve Arizona problems,” he said. “In fact, I would submit that Washington, D.C. is where good ideas go to die.”

And even if the companies are no longer engaging in the acts in the complaint, Brnovich said the state still needs to take legal action.

“Someone has to pay the consequences for what they’ve done in the past,” he said.

That goes to the parts of the lawsuit which seek to “disgorge” the companies of profits they had made from underage Arizonans who were targeted and deceived. He also wants penalties of up to $10,000 for each knowing violation of the law.

Arizona isn’t the first state to file such lawsuits.

Attorneys general in California, North Carolina and New York also have gone to court, specifically against Juul, alleging that the company’s marketing practices have contributed to deaths and injuries nationwide. Those claims also charge misleading sales tactics.

Brnovich said those are irrelevant — at least as far as Arizona is concerned. And in some ways, he said, it’s about money.

“If the state of, I don’t know, California sues, that’s not going to have any sort of financial impact on Arizona,” Brnovich explained.

“I want to make sure part of what these lawsuits are about is disgorging the profits,” he continued. “If you have companies that manipulate a nicotine content, didn’t disclose information, if they intentionally tried to target youths here in Arizona, I think Arizonans and Arizona families deserve some sort of compensation for that.”

He said not pursuing such a claim would be like someone whose car was wrecked by another’s liability simply being satisfied with an apology and no compensation to fix the vehicle.

“And, at the end of the day, if you don’t hold companies accountable, then you’re not going to deter other companies from doing so in the future.”

Less clear is who gets any cash that Brnovich manages to recover.

“I think at this point that’s a little premature,” Brnovich said.

“It depends on if you are able to identify individuals who have specifically been harmed,” he said. “There’s also issues of communities that have been harmed.”

He compared it to lawsuits filed by multiple states, including Arizona, against opioid makers and distributors.

“Part of the responsibility of the opioid manufacturers is to make sure that there’s restitution to the communities that are impacted by this

There actually are other lawsuits aimed at recouping costs. That includes a nationwide class-action claim joined by several school districts, including Tucson Unified School District, that seek financial compensation to deal with rising use of tobacco vaping products.

But Brnovich said there’s a crucial difference between what he filed Tuesday and the class-action lawsuit where the various government agencies are being represented by private counsel.

“I don’t want to see plaintiffs’ lawyers enriched,” he said. “I want to see money going into the communities and the schools that have been impacted by this crisis.”

The lawsuit comes as a new fight looms at the Capitol over how extensively to regulate vaping products in Arizona.

Last year Sen. Heather Carter, R-Cave Creek, pushed a bill through the Senate to treat vaping like tobacco. That would subject retailers to the same penalties for underage sales and make vaping illegal in public places, restaurants and buildings, just as it is for cigarettes.

But that bill faltered in the House which backed a plan by Rep. John Allen, R-Scottsdale which proposed a whole separate regulatory scheme for vaping. While it would have raised the age for purchase to 21, it also would have precluded local governments from enacting stricter rules, including licensing requirements and criminal penalties for sales to minors.

A similar battle looms when the Legislature reconvenes later this month.

The United States Surgeon General has described youth e-cigarette use as an “epidemic,” and the former United States Food and Drug Administration commissioner has pointed to JUUL as a significant cause of the problem, according to a release from the Attorney General's Office. Youth vaping now dramatically outpaces youth cigarette use nationally and in Arizona. 

"JUUL updated Big Tobacco's playbook and helped create the perfect storm for a new youth epidemic," Mr. Brnovich stated. "JUUL enticed interested minors through advertising, lured kids in with flavored vaping products, and then hooked a new generation of youth to addictive nicotine.

"Vaping companies that engage in irresponsible and misleading marketing efforts must be held accountable for exposing Arizona youth to nicotine and the addiction that follows. Great strides have been made to dramatically reduce youth smoking and access to nicotine products in the past twenty years. Up until recently, our office has seen the fail rate of illegal tobacco and nicotine-based product sales to youth statewide drop below ten percent for the first time in part thanks to our retail enforcement efforts. However, the recent vaping explosion among youth is a clear sign that this positive trend is now swinging dramatically in the wrong direction."

The Arizona Attorney General’s Office’s lawsuit alleges that JUUL engaged in deceptive and unfair acts and practices, including:

• Appealing to, targeting, misleading, and exploiting young people with tactics such as fruit flavors, social media campaigns, and free giveaways;
• Failing to take steps to prevent underage purchase and distribution; and
• Misleading consumers about the nicotine content in JUUL’s products.

The recently released 2019 National Youth Tobacco Survey shows a dangerous and alarming vaping trend among American youth: 

• The number of U.S. children and teenagers using tobacco and electronic nicotine delivery systems (ENDS) in the last 30 days has risen to 6.2 million. 
• About 1 in 3 high school students (4.7 million) and about 1 in 8 middle school students (1.5 million) identify as current tobacco users - which includes e-cigarette products. Those numbers are up from 2018, including almost doubling among middle school students. 
• It is the second year in a row an increase in young people using tobacco has been recorded. This, after years of steady progress driving down the numbers of young people using.
• For the sixth year in a row, e-cigarettes were the most commonly used tobacco product among high school and middle school students (27.5%).
• 27.5% of high schoolers vape, up from 20.8% in 2018.
• 10.5% of middle schoolers vape, up from 4.9% in 2018.
• Nearly 7 in 10 middle and high school students (4.3 million) who currently use tobacco said they used flavored tobacco products in 2019.

The Attorney General's Office Tobacco Enforcement Unit has also witnessed this trend, according to the release. The TEU conducts undercover inspections utilizing youth volunteers to check if retailers, including smoke shops, are selling tobacco products to minors as part of its Operation Counter Strike program.

In 2019, the TEU conducted 3,002 inspections statewide and issued 775 citations to businesses and individuals. After declining fail rates for two consecutive years and reaching historically low levels in FY2018 (9.8%), the fail rate for inspections in calendar year 2019 jumped to 14% statewide. TEU attributes the increase to youth access and demand for e-cigarettes.

The lawsuit against Eonsmoke alleges, among other things, that Eonsmoke has been illegally selling vaping products to consumers and retailers across the State. In 2019, the FDA determined Eonsmoke products did not have the required marketing authorization and therefore could not be sold on the market. However, undercover investigators with the Attorney General’s Office found the products are being sold in nine out of fifteen Arizona counties — representing about 96% of Arizona’s population — and online. 

"I am committed to doing everything I can to help combat the dangerous trend of youth vaping," Brnovich stated. "Speak to any parent or student who has stepped foot on a high school or middle school campus recently and they will tell you teen vaping is an epidemic. Millions of children are hooked on nicotine, enticed by youth-friendly flavors and targeted advertising. You can't flout the law by selling illegal products and not be held accountable."