California rejected another attempt by the class action bar to extend the already questionable fraud-on-the-market theory from Basic v. Levinson, 485 U.S. 224 (1988), a securities class action, to what amount to failure to warn claims for consumer products or, as we’ve seen before, drugs and medical devices. This time the class action plaintiffs’ bar was focused on e-cigarettes. See In re NJOY, Inc., Consumer Class Action Litig., 2016 U.S. Dist. LEXIS 24235 (C.D. Cal. Feb. 2, 2016). A handful of hopeful consumers claimed that they were misled by an e-cigarette’s labeling and were not warned about its ingredients or risks. Id. at *3. As is often the case with these types of class action claims, however, the plaintiffs did not allege an injury—well, at least not a physical injury. They suffered no side effects. They had no physical ailments. The risks didn’t affect them.
So what were they claiming? It’s rarely easy getting your arms around claims like these. The plaintiff purchased the product. It did what it was supposed to do. And the plaintiff enjoyed it. In fact, many plaintiffs would have purchased the e-cigarette even if the ingredients and alleged risks were disclosed. So, again, what exactly is the claim?