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Class Disputes Safety of E-Cigarettes

SANTA ANA, Calif. (CN) - An electronic cigarette maker uses deceptive advertising to persuade people that its products are harmless, though they include similar carcinogenic chemicals as traditional cigarettes, a Californian claims in a class action lawsuit.

Eric McGovern claims that Njoy of Scottsdale, Ariz. avoids federal regulation of its cancer-causing products by stating on cartons that it is not a smoking cessation product. Yet it implies in its marketing that Njoy cigarettes help smokers quit, McGovern says in the lawsuit.

Also named as a defendant is Sottera, a parent company that merged into Njoy in July in 2012, according to the complaint.

E-cigarettes, sold in California as "Vapes" (for vapor) have become a popular alternative to tobacco cigarettes and are marketed as a less harmful alternative.

The product looks and sometimes feels like a cigarette. Battery operated e-cigarettes release a nearly odorless vapor when exhaled and come in various flavors.

Advertisements claim that Njoy cigarettes, which enjoy a 40 percent share of the U.S. market, have "everything you like about smoking without the things you don't."

But the Food and Drug Administration has found that the cigarettes contain harmful ingredients. The agency testing revealed that one brand of cigarettes used a toxic chemical found in antifreeze.

McGovern claims that Njoy cigarettes also contain the "same impurities and the same cancer-causing agents as traditional cigarettes."

Njoy touts e-cigarettes as a safe alternative by implying that its product is as safe as vegetables and plants that contain nicotine, McGovern says.

"In reality, a typical consumer would need to ingest, as an example, 244 grams of tomatoes to equal the amount of nicotine a passive smoker would absorb in about three hours in a room with a minimal amount of tobacco smoke," the 25-page lawsuit states.

Two hundred and forth-four grams is about 8½ ounces.

Furthermore, McGovern claims, the Njoy website suggests the e-cigarette helps people quit smoking. But a look at the small print on the e-cigarette container states that Njoy cigarettes are not designed for that purpose, McGovern says.

"Undoubtedly the reason defendants state elsewhere that it is not a smoking cessation product is to avoid regulation under the Food, Drug and Cosmetic Act, which has been found, in a lawsuit to which Njoy was a party, to grant the FDA the power to regulate smoking cessation devices," the complaint states.

Estimating that tens of thousands of people have purchased Njoy cigarettes, McGovern's complaint seeks unspecified actual, compensatory, exemplary and punitive damages.

McGovern alleges violations of the Consumer Legal Remedies Act, unfair competition or deceptive business practices, deceptive, false and misleading advertising, consumer fraud, unjust enrichment, and conversion.

McGovern is represented by Brian Chase of Bisnar Chase of Newport Beach.

Njoy did not immediately respond to a request for comment.

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