Abstract
The unexpected and dramatic rise in youth e-cigarette consumption in the past decade has left both private and public actors racing to catch up to a quickly evolving and potentially disastrous market. As litigation against e-cigarette manufacturers continues to develop, it is increasingly evident that one of the biggest obstacles to bringing private claims will be avoiding preemption under the Federal Food, Drug, and Cosmetic Act (FDCA).
This Comment argues that one untested yet promising pathway for injured plaintiffs to avoid preemption is to bring FDCA-based negligence per se claims. By examining precedent involving other FDCA provisions, this Comment assesses the viability of such claims and concludes that the FDCA’s tobacco-specific regulations are unique in both their articulated standards of care and their regulatory precision. These features may allow negligence per se claims grounded in tobacco provisions to avoid preemption where similar claims based on other FDCA sections have not. In the wake of increased reports of harm to adolescents from tobacco use, these routes to liability may be more important than ever.
Start Page
575
Recommended Citation
Hering, Grace
(2026)
"Vapes in Violation: The Case for an FDCA-Based Negligence Per Se Claim Against E-Cigarette Manufacturers,"
University of Chicago Legal Forum: Vol. 2025, Article 17.
Available at:
https://chicagounbound.uchicago.edu/uclf/vol2025/iss1/17