As a personal injury lawyer, I see daily the tremendous impact unexpected events have on my clients' lives. A traffic accident, an incident at work, a medical error; these are moments that change lives forever. Therefore, the saying "forewarned is forearmed" is not an empty slogan for me, but a daily reality. This constant confrontation with the consequences of accidents has made me a lot more observant and cautious and emphasizes the undeniable power of warnings.
But what if necessary warnings are cunningly packaged in an attractive package of trendy colors and sweet flavors? What if the danger being marketed specifically targets a vulnerable group, namely young people, who are less able to assess the risks?
The recent revelations of RTL News about the serious consequences of vaping are shocking.[1] The news that five young people have narrowly escaped death due to vape use, four of whom have been in comas, is alarming. And unfortunately, these do not appear to be isolated incidents. Doctors are sounding the alarm because of worrying increases in serious lung diseases such as pneumothorax, pneumonia, irreparably damaged pulmonary alveoli and even the early development of COPD in young users due to vaping.[2]
As a lawyer and citizen, I ask myself: how is it possible that products that are so obviously harmful, and whose design and flavors are made so attractive to young people, can circulate so freely in our market? Can the marketing of such a harmful product in this way be called lawful?
From a legal perspective, we then quickly arrive at the term defective product (Article 6:186 of the Civil Code). Simply put, this means that a product does not provide the safety that a consumer can reasonably expect from it. What safety should we and especially young people actually expect from vapes? The facts are disturbing:
- The composition of many vapes is often unclear. Essential information about the ingredients used and nicotine content is frequently missing. This while independent research shows that many vapes contain harmful substances such as heavy metals (e.g., lead), acetone and formaldehyde, in concentrations well above permissible standards.[3] These substances can lead to serious health problems, including cancer, brain damage and lowered IQ.[4]
- The much-heard claim that vaping is a less harmful alternative to smoking has been debunked by renowned institutes such as the Trimbos Institute and RIVM. Indeed, research by the Trimbos Institute shows that vaping can actually be a stepping stone to "regular" smoking for young people. It has also been shown that one puff of a vape can sometimes already contain more nicotine than a whole cigarette, a fact of which young people are often unaware.[5]
The "own fault" argument ("The consumer chooses it himself, doesn't he?") does not make sense legally when there is incomplete or even misleading information and marketing strategies that cunningly and deliberately target young people. If the actual risks are not clearly and honestly communicated, how "free" is the choice of a consumer, especially a minor, really?
First, the current situation underscores the urgent need for adequate government surveillance and effective enforcement. It is the government's duty to protect public health, especially that of young people. A serious review of policy and enforcement is therefore inevitable. In addition, vapes could be classified as a "defective product" (Article 6:186 of the Civil Code), which brings producer liability into the picture. In this way, producers can be held accountable for the consequences of marketing a dangerous product that causes harm.
This blog was written by Lieske de Vos. She no longer works for us. If you have any questions about this blog or would like to talk further about this topic, please contact Bojan Dekker.
[2] Home 2024 - Doctors sound alarm; Doctors sound alarm over life-threatening lung problems from vaping: 'Five patients near death' | Interior | AD.nl
[3] The health risks of using e-cigarettes; Vapes of Dutch children examined in lab: packed with poison, lead and too much nicotine RTL News conducted independent research by a specialized laboratory in Liverpool. There, the liquid in the vapes was analyzed and the vapor inhaled when smoking the vape was tested.
[4] Five questions about vaping and E-cigarettes from pediatric pulmonologist Peter Merkus - RadboudumcHow unhealthy is vaping really?
[5] Young people who vape underestimate risk of addiction - Trimbos Institute