Judge Dismisses Most of NJOY/Altria Lawsuit Against Disposable Sellers

A lawsuit by Altria Group vape subsidiary NJOY against dozens of manufacturers, distributors and retailers of disposable vapes has been dismissed by a U.S. District Court in California. The court did not dismiss the case against Elf Bar manufacturer IMiracle.

The lawsuit, filed last October, charged the companies with selling products illegal in California and the United States, and asked for a nationwide injunction that would prevent future importation and sale of the products, and compensatory and punitive damages paid to NJOY.

Among the companies charged were manufacturers and distributors of Breeze, Elf Bar, Esco Bar, Flum, Juice Box, Lava Plus, Loon, Lost Mary, Mr. Fog and Puff Bar—brands that together make up a large portion of the U.S. disposable vape market.

The dismissal order was entered on Jan. 18 by Judge Terry J. Hatter Jr. of the U.S. District Court for the Central District of California. The court found that the defendants did not participate in “the same transaction, occurrence, or series of transactions or occurrences,” and therefore were improperly joined in the lawsuit. Because of that, Judge Hatter dropped all parties from the suit except the first named defendant, IMiracle.

The judge entered his orders “without prejudice,” meaning that NJOY could refile against the dismissed defendants individually or perhaps in smaller groups with demonstrable relationships. The court also dismissed NJOY’s claim of unfair competition and its motion for a preliminary injunction barring sales and distribution by the defendants.

Regarding Elf Bar manufacturer IMiracle, which is headquartered in Hong Kong, the court denied NJOY’s motion to serve the company by email, noting there is an established international process (the Hague Convention) for serving legal notice to foreign defendants. That leaves NJOY’s action against IMiracle alive, but unable to proceed until the Chinese manufacturer is formally served notice of the lawsuit.

NJOY, once known as an independent vaping industry pioneer, is now the vape subsidiary of Altria Group, the U.S. manufacturer of Marlboro cigarettes. Altria bought NJOY last year for $2.75 billion, after giving up its 35 percent share of Juul Labs. NJOY sells two of the six currently available FDA-authorized vape devices.