By Timothy S. Donahue
Top Takeaways:
- Fee fight: Two consumers are suing Element Vape over a “Route Package Protection Fee” added to online orders.
- Familiar challenge: The case appears similar to pending federal litigation challenging Route App’s package-protection service.
- Details pending: The Element Vape lawsuit was filed Oct. 1 and the complaint has not yet entered the public domain.
Another checkout fee case is heading to court, and this time the retailer is the defendant.
Element Vape is facing a proposed class-action lawsuit in California, alleging that the online vaping retailer deceptively inflates customers’ purchase totals by automatically adding a Route Package Protection fee at checkout, despite advertising product prices and free or paid shipping.
The lawsuit, filed Sept. 29 in the Los Angeles County Superior Court, names TheSy LLC, doing business as Element Vape, as the defendant. Plaintiffs Jeff Eck-London and Jade Mount allege that the retailer adds charges beyond the advertised cost of merchandise and shipping, providing little additional value to customers.
The case, Eck-London v. Element Vape, No. 26STCV30788, alleges violations of California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law.
The dispute centers on Route Package Protection, a service marketed to online shoppers as protection against packages that are lost, stolen, or damaged during delivery. According to the allegations, Element Vape automatically adds the protection charge to customers’ orders rather than requiring customers to affirmatively select the service.
The lawsuit raises questions about how optional services are presented during online purchases and whether customers provide adequate consent to additional charges before completing their transactions.
The plaintiffs are represented by Jeffrey D. Kaliel, Sophia G. Gold, and Amanda J. Rosenberg of KalielGold.
The Element Vape lawsuit follows similar litigation against Route App, the company whose technology enables online retailers to offer package-protection services at checkout.
In Mertson et al. v. Route App Inc., filed on June 3 in the U.S. District Court for the Northern District of New York, plaintiffs Anthony Mertson and Michael Schirano allege that Route allows retailers to add preselected shipping-protection charges without customers knowingly agreeing to purchase the service.
That lawsuit alleges violations of New York consumer-protection laws and seeks damages and other relief for consumers who paid the disputed fees. The plaintiffs are represented by the same KalielGold attorneys who handled the Element Vape case.
Another lawsuit, Cantore v. Route App Inc., has already withstood a significant legal challenge.
On May 7, U.S. District Judge Sara Ellis in Illinois allowed most claims against Route to proceed, including allegations under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. The judge dismissed a tortious-interference claim without prejudice.
The ruling did not establish that Route’s checkout practices were unlawful. Instead, Ellis found that the plaintiffs had sufficiently alleged that the design and presentation of Route’s shipping-protection option could deceive reasonable consumers.
The Element Vape lawsuit extends the dispute directly to a vaping retailer, rather than focusing solely on the company that provides the checkout technology.
Element Vape describes Route Package Protection as an optional service for customers concerned about lost, stolen, or damaged shipments. The company also maintains its Element Vape Guarantee, which provides certain remedies for qualifying delivery problems.
