Health advocates have spent decades speaking out about the dangers of cigarettes. Smoking tobacco has been definitively linked to heart disease, lung disease, diabetes, and cancer, among other debilitating and dangerous conditions. The tobacco lobby, on the other hand, has downplayed the dangers of cigarettes and continuously fought for the right to continue selling their products. In a huge victory for tobacco opponents, the Food and Drug Administration (FDA) recently proposed a ban on menthol-flavored cigarettes. Piggy-backing on the FDA’s findings, a Florida woman filed a class action against Walgreens for selling the soon-to-be-banned products without disclosing their true danger.

Nationwide drug-store chain Walgreens sells various types of tobacco products, including menthol cigarettes. According to the lawsuit, Walgreens represents menthols the same as ordinary cigarettes without identifying them as being any more dangerous or addictive than other tobacco products. Menthol cigarettes, the complaint contends, pose a higher risk for tobacco and nicotine addiction. Studies have shown that menthol and other flavorings increase the appeal of cigarettes, especially among teenagers and young adults, which promotes addiction. Moreover, menthol enhances the euphoric effects of cigarettes, increasing the risk of addiction.

Walgreens, according to the complaint, engages in false and deceptive marketing of menthol products in violation of the Florida Deceptive and Unfair Trade Practices Act (FDUPTA). The FDUPTA prohibits sellers of products from deceptive marketing practices and requires sellers to warn consumers of harm that their products may cause. By failing to advise consumers of the additional dangers posed by menthol cigarettes and marketing them alongside regular cigarettes, Walgreens deceptively induced consumers to purchase their products. The plaintiff seeks to represent a class of all U.S. residents who bought menthol cigarettes from Walgreens locations in the United States in the last four years. The lawsuit asks for damages as well as an injunction preventing Walgreens from selling menthol cigarettes, “or at the very least include a warning that the Products pose a public health risk above that seen with nonmenthol cigarettes.”

The proposed class-action raises a number of interesting questions. Can a retailer be held responsible for harm caused by the products it sells, when those products are otherwise legal? Does it matter whether those dangers are generally understood, if not highlighted by the retailer? If selling menthols can give rise to liability for retailers, what’s next?

Alcohol products, other tobacco products, and even ultra-processed foods that contribute to high cholesterol can all cause harm to consumers. All are legal and permitted by the FDA. At what point does a retailer have the responsibility to ensure its shelves are free from harmful products, and at what point does personal responsibility come into play? Moreover, is it the responsibility of the retailer to vet all products, as opposed to trusting the word of the manufacturers?

The class action was filed around a week after the FDA proposed a ban on menthol cigarettes among other flavored tobacco products. According to the FDA, their proposal has the “potential to significantly reduce disease and death from combusted tobacco product use, the leading cause of preventable death in the U.S., by reducing youth experimentation and addiction, and increasing the number of smokers that quit.” For the moment, the sale of menthol cigarettes remains legal in many locales around the country.

Regardless of the outcome, the lawsuit will be an interesting case study in the next wave of consumer class actions.