The JUUL Lawsuit: A Conversation with Attorney General Keith Ellison

During the second half of 2019, episodes of severe lung disease and even death from vaping were in the news. In response, Governor Tim Walz announced on December 4 that the State of Minnesota was suing JUUL. To give MetroDoctors readers a deeper understanding, TCMS Immediate Past President Thomas E. Kottke, MD interviewed Attorney General Keith Ellison on January 17, 2020. The transcript, edited for clarity and length, follows:

TEK: I’d like to start with finding out about the Attorney General as a person. Where are your roots? AG Ellison: I was born and raised in Detroit. I’m the third son out of five, no sisters. My dad is from Burke County, Georgia, and my mother is from Natchitoches, Louisiana. My mother graduated from Xavier University in New Orleans, and after getting a degree in pharmacy, my father went to the University of Michigan Medical School. He trained to be a psychiatrist back in the fifties when they didn’t even let black students live on campus. My brother is an internist in the city of Detroit. I moved to Minnesota about the age of 22 to go to law school at the University of Minnesota and have been here ever since.

TEK: What led you to serve in Congress? AG Ellison: The reason I ran for Congress is because I felt that, as a lawyer, I could only handle one case at a time, but in Congress I could help millions of people at one time by passing laws like the Affordable Care Act.

TEK: Why did you run for Attorney General? AG Ellison: The seat opened up so I jumped into it because I thought that we can do stuff about vaping, and we can do stuff about health care, and we can do stuff about telecom, and consumer justice, and wages, and we can deal with the social determinants of health like housing and education. So, I jumped into it, and I’ve been doing it for a year. I love it.

TEK: When did you start thinking about suing JUUL? AG Ellison: I thought about a lawsuit when I started seeing a lot of junior high school kids vaping, and when I read about the pods containing a lot of nicotine, and I started to understand how addictive nicotine can be and how debilitating getting an addiction as a preteen or teenager can be to life as an adult. Elijah Cummings, before he passed away, was conducting some hearings on JUUL and vaping and the deceptive practices that they were engaged in. So, I decided that the Attorney General’s Office would do something about JUUL. We filed a lawsuit that is primarily targeted at the deceptive trade practices related to young people. While we think JUUL has to tell the truth to adults, too, their advertising to young people is particularly bad; it creates a very serious health risk to our society. So, we decided to take them on. If JUUL wants to market an inherently hazardous substance to adults, they need to tell the truth about the risk they’re running, and then adults can make their Thomas E. Kottke, MD and Attorney General Keith Ellison.

own decisions. But if you are lying to kids, we’re going to sue you.

TEK: Was there a particular trigger for the lawsuit? AG Ellison: The stories in the paper about people dying piqued my interest. When I dug into it, I became convinced that we needed to sue. And, I’ll tell you quite frankly, a very good friend of mine called me one day and told me that they were working for JUUL. And this good friend of mine told me that JUUL was “harm reduction” and that it was going to be a good thing for adults because it’s less hazardous than combustible cigarettes. I just thought to myself, “if these guys are hiring people with real bona fides in the civil rights area to convince me about how wonderful they are, they must really be desperate.” So, it had the opposite effect, right? They wanted to get me to think, “This is my buddy, I can be happy with what they’re doing.”

TEK: Why has the state engaged Robins Kaplan, LLP again? AG Ellison: While the Attorney General’s Office is absolutely in the driver’s seat on this lawsuit, there’s a voluminous number of documents that we’re going to have to sort through and tasks we’re going to have to take on. Therefore, we put out a request for quotations from outside firms and hired both Robins Kaplan and Zimmerman & Reed, Pllp. Robins Kaplan, in particular, knows about the tobacco litigation—where the tricks are, and they understand the deceptions. The CEO of JUUL made it very clear publicly that they research the tobacco files to figure out how to do the marketing.

TEK: What level damages are you looking for? AG Ellison: The damages will be substantial, but the amount is dependent upon what we find in discovery. Damages will have to be enough to compensate for the losses. Because our system of addiction recovery for teenagers is not well developed, we’re going to have to build new medical models. I believe JUUL needs to be responsible for that. We’ll also be looking for mitigation laws and compensation to help free young people of addiction. And now JUUL says, “Oh, we don’t really market to the kids anymore.” Well, maybe they do, maybe they don’t, but even if they don’t, they’ve already addicted them. They’ve locked in their consumer base through addiction. So, we’re going to have to unlock that, and they’re going to have to help us pay for it. We know that if you experience addiction as an adult the neural pathways may not be so deeply grooved that you can’t break free of it, but if you get addicted as a kid while your brain is actually being mapped, that addiction may be even tougher than if you started as an adult. TEK: In the last lawsuit the state sold off the assets. Do you have a plan to prevent this from happening again? AG Ellison: We want to make sure that the money goes to the people who are the victims, and that includes institutions that have to pay for mitigation. We learned from last time that we need to be very clear in the law this time.

TEK: Who do you think ought to be responsible for allocating the resources? AG Ellison: Part of it will be driven by the negotiation. I think the Attorney General’s Office is going to have to have some responsibility. I think we would invite the legislature to be part of it because, of course, it is their job to be in touch with constituents. What we’re not going to do is stick the money into the general fund and then just cut taxes for rich people. The legislature has an important role to play, but this money is to compensate for real damage that people have suffered; it’s just not a slush-fund to cut taxes for wealthy people.

TEK: Do you think the Clearway model has been effective? AG Ellison: I don’t have any complaints about Clearway, but I am very mindful of the fact that Clearway is based on a problem that happened 20 years ago. We’ve got to be adaptive to the moment that we’re in. Because the lawsuit is focused on the targeting of young people, we want to engage more young people in whatever new institution that might emerge. We want to make sure that the voice of young people and of educators is there in a way that may not have been in the past. We’re going to learn based on what happened before, and we’re going to be very mindful of the past as we go forward.

TEK: Thank you for your time. Good luck!

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