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Margo Brandenburg, Associate Member, University of Cincinnati Law Review
I. Introduction
Over the last decade, many smokers have made the switch to electronic cigarettes. Some of these smokers believed that electronic cigarettes were a healthier option than traditional cigarettes.[1] One company, JUUL Labs, distinguishes itself as the leading producer of E-cigarettes in the United States.[2] JUUL Labs produces JUUL electronic smoking devices and JUUL pods, which are inserted into the JUUL device and are made in a variety of flavors.[3] The JUUL device resembles a USB flash drive, and can be charged in the USB port of a computer. [4] Since the E-cigarette company’s launch only four years ago,JUUL E-cigarette sales have “made its founders billionaires, created a new verb, and resurrected the United States’ once dying E-cigarette market.”[5] The company’s revenue has almost tripled in the past two years, growing from $224 million in 2017 to nearly $1 billion in 2018, and profits are expected to continue to rise in 2019.[6]
Despite the ever-increasing popularity of “JUULing,” especially among young adults and teenagers, rough times may be ahead for the company.[7] JUUL Labs has been the subject of several consumer class action lawsuits. Additionally, the Trump Administration has targeted the company during its announcement of upcoming crack downs on E-cigarettes.[8] Part II discusses some of the consumer suits filed against JUUL. Part III explains the Trump Administration’s recent announcement that they plan to take flavored E-cigarettes off the shelves. Part IV concludes, noting that the future of the E-cigarettes like JUUL is unknown, but JUUL Labs should do its best to comply with FDA demands in the meantime.
II. E-Cigarette Use Today
From 2017 to 2019, high school students’ E-cigarette use increased by 135 percent.[9] Even more alarming, a study done by the New Truth Initiative indicated that sixty-three percent of JUUL users did not know that the JUUL E-cigarette contains nicotine.[10] According to the Center for Disease Control and Prevention, JUUL products are appealing to consumers because they “can be used discreetly, have a high nicotine content, and come in flavors that appeal to youths.”[11] While these E-cigarettes seem like they may be a better option than traditional cigarettes, it turns out that these may be just as dangerous. In December 2018, the Surgeon General issued an advisory on youth E-cigarette use, declaring the problem to be a growing epidemic.[12]
JUUL Lab’s early marketing tactics are credited with being a substantial reason for this epidemic.[13] In the company’s early stages, JUUL Labs enticed millions of teenagers and young adults to purchase the product by using colorful advertisements, social media campaigns, and trendy event spaces.[14] While JUUL asserts that it never advertised to teenagers, others have notably disagreed.[15] According to Dr. Robert Jackler, a founder of Stanford Research Into the Impact of Tobacco Advertising (“SRITA”), JUUL Labs deleted many of its controversial youth directed social media posts in several waves sometime before September 2019.[16] Jackler and his team has maintained in an archive JUUL’s deleted posts, including more than 2,500 tweets and 400 Facebook and Instagram posts, as well as material from JUUL’s website and other documents dating back to the company’s launch.[17] These social media archives contain evidence of JUUL’s advertising campaigns, which depicted attractive models smoking the E-cigarette in upscale clubs or bars, in an effort to attract young people.[18] As a result of JUUL’s advertising tactics, groups of consumers have filed complaints against JUUL Labs based on these suggestive marketing campaigns during the early days of the company.[19] In October 2019, a judicial panel on multidistrict litigation released an opinion that allowed JUUL to consolidate similar consumer suits against the company into one venue.[20] The panel stated that many of these suits involve the same general claims—”allegations that [JUUL Labs] had marketed its nicotine delivery products in a manner designed to attract minors . . . that JUUL products are defective and unreasonably dangerous due to their attractiveness to minors, and that [JUUL Devices] promote[] nicotine addiction.”[21]
In Nessmith v. JUUL Labs, Inc., one recently filed class action suit, the complaint alleged that JUUL devices were dangerous to users, especially teens and young adults, and that JUUL Labs used deceptive advertising practices.[22] Specifically, the complaint discussed that JUUL concealed information about the addictiveness of its products, advertised JUUL pods to have less nicotine than they really do, and failed to notify consumers that its products have not been approved by the FDA.[23] Moreover, it noted that JUUL copied the big tobacco companies’ efforts to glamorize traditional cigarettes in the 1950’s.[24]
In Indiana, a father of a fifteen-year-old teen who became addicted to a JUUL Lab E-cigarette filed another complaint against JUUL Labs.[25] The complaint alleged that JUUL Labs could have created a product that was less enticing to young people and contained less nicotine.[26] Describing the candy flavors and colored devices that JUUL Labs offers consumers, the father alleged that JUUL Labs could have designed a product that more specifically targeted adult smokers.[27] Due to JUUL usage and nicotine addiction, the father explained that his son will have lifelong medical problems.[28]
III. The Trump Administration & FDA Crack Down
Amidst the public outrage and lawsuits filed against JUUL, the Trump Administration and the FDA began taking efforts to curb flavored E-cigarette use by the public. In September 2019, the Trump Administration announced that it plans to remove all flavored E-cigarettes—other than tobacco flavor—from store shelves within thirty days.[29] This includes popular flavors among young people, like mango, cucumber, and menthol flavors, which JUUL has previously sold in their in both their brick-and-mortar locations and online.[30] U.S. Health and Human Services Secretary Alex Azar told reporters that the FDA made the decision to remove all flavored E-cigarettes from shelves to protect the health of Americans, specifically youth.[31] According to Azar, an unknown lung disease has plagued many of E-cigarette smokers and the disease has killed at least six of the smokers thus far.[32]
Under the Trump Administration’s new proposed policy, E-cigarette companies may be able to reintroduce flavors that were previously forced off of store shelves after their product is approved by the FDA’s formal application process.[33] However, the Trump Administration has not announced the formal policy on E-cigarettes yet.[34] Therefore, in the meantime, JUUL Labs continues to sell its mint, menthol, and tobacco flavored pods in retail outlets, while otherwise seeming to cooperate with the Trump Administration by taking all other flavors off shelves.[35]
IV. State Laws Banning E-Cigarettes
While it may take months for the federal ban to take effect, some states, like New York and Michigan, have already announced state-wide bans on flavored E-cigarettes, and others have announced plans to create similar prohibitions.[36] States have a variety of options at their disposal to help curb E-cigarette use, dating back to states’ successful implementation of legislation regulating big tobacco companies’ selling and advertising of traditional cigarettes to young people.[37] As states became aware of the problem of traditional cigarettes attracting young people, “they succeeded by approaching the problem from multiple angles:banning tobacco sales to minors, reducing flavors in tobacco products, taxing cigarettes, and prohibiting ads on billboards.”[38] The first step, banning tobacco sales to minors is largely completed with regard to E-cigarettes; as of September 2019, almost all states have laws that prohibit youth access to E-cigarettes. [39]
V. Analysis
After the lawsuits, FDA regulations, and a potential Trump Administration crack down, JUUL Labs should be fully cooperative with the government in taking all of its flavored products off shelves. JUUL Labs claims that its goal is to improve the lives of the billion smokers around the world.[40] While this seems like a valiant mission, JUUL is worsening lives by leaving any of its flavored pods on the market. JUUL’s announcement that they will take all of the flavors other than menthol and mint off shelves is a marketing tactic disguised as corporate social responsibility. While JUUL seems to have made efforts to comply with FDA demands, mint and menthol flavors are one of the most popular among high school students, and preference for these flavors among teens has increased since the other flavors were taken off the market.[41] Thus, in an effort to continue making a profit, JUUL is continuing to sell its most appealing E-cigarette flavors while keeping up a façade that it is abiding by FDA demands.
Since JUUL Labs is not making a genuine effort to curb youth E-cigarette use, states should get more involved until the Trump Administration formulates concrete, federal legislation banning the sale of flavored E-cigarettes. As a matter of public policy, states need to get involved in helping to curb the E-cigarette epidemic’s impact on youth. While almost all states have enacted laws that prohibit youth access to E-cigarettes, the states’ legislation prohibiting access only is not going far enough to curb youth smoking.[42] This is evidenced by the fact that the mint and menthol flavors still appeal to youth smokers, and youth smokers are still buying JUUL products.[43] Like states did in the crack down on traditional cigarettes over the last decade, all states should create legislation that bans all flavored JUUL E-cigarettes in brick-and-mortar stores, other than tobacco flavor, in the hope that doing so will decrease the number of underage JUUL smokers who smoke just for the flavorful taste.
VI. Conclusion
Flavored E-cigarette companies like JUUL Labs are risking teens’ lifelong health by its past marketing tactics and the many different flavors they offer. Until the Trump Administration releases concrete policy on E-cigarette usage, and more research is done outlining the effects of JUUL device usage on the human body, JUUL Labs is in a state of waiting. While waiting on the federal legislation, states should implement their own legislation that bans flavored E-cigarettes throughout the state. Also, JUUL Labs itself should get serious about the FDA’s demands, unless JUUL wants to face even harsher consequences, and even more consumer-based lawsuits. While these recommendations are only initial steps in curbing underage teens’ use of JUUL products around the country, they will be steps in the right direction.
[1]Katy Moncivais, What are Consumers Claiming in Juul Lawsuits?, Nat. L. Rev.(Sept. 11, 2019), https://www.natlawreview.com/article/what-are-consumers-claiming-juul-lawsuits.
[2]Id.
[3]Laura Bach, JUUL and Youth: Rising E-Cigarette Popularity, Campaign for Tobacco Free Kids(Sept. 12, 2019), https://www.tobaccofreekids.org/assets/factsheets/0394.pdf.
[4]Id.
[5]Irene Kim, Steve Cameron, & Kaitlyn Wang, How Juul went from a $38 billion darling to uncertain future and FDA investigation,Bus. Insider(Oct. 22, 2019), https://www.businessinsider.com/juul-e-cigarette-success-fda-investigation-2019-10.
[6]Id. This “verb” is called JUULing, rather, the action of smoking a JUUL e-cigarette.
[7]Moncivais, supra note 1.
[8]Id.
[9]Bach, supra note 3.
[10]JUUL E-Cigarettes Gain Popularity Among Youth, but Awareness of Nicotine Prescience Remains Low, Truth Initiative (Apr. 18, 2018), https://truthinitiative.org/press/press-release/juul-e-cigarettes-gain-popularity-among-youth-awareness-nicotine-presence.
[11]Bach, supra note 3.
[12]Id.
[13]Id.
[14]Id.
[15]Kathleen Chaykowski, The Disturbing Focus on Juul’s Early Marketing Campaigns, Forbes (Nov. 16, 2018, 2:38 PM), https://www.forbes.com/sites/kathleenchaykowski/2018/11/16/the-disturbing-focus-of-juuls-early-marketing-campaigns/#5b1a176414f9.
[16]Id.
[17]Id.
[18]Id.
[19]E.g., Zampa v. JUUL Labs, Inc., 2019 U.S. Dist. LEXIS 68556, (S.D. Fla. Apr. 23, 2019), Nessmith v. JUUL Labs. Inc., Case No. 8:19-cv-00884, Complaint (M.D. Fla. April 15, 2019).
[20]In re Juul Labs, Inc., 2019 U.S. Dist. LEXIS 174035, at *1 (J.P.M.L. Oct. 2, 2019).
[21]Id.
[22]Case No. 8:19-cv-00884, Complaint (M.D. Fla. April 15, 2019).
[23]Id.
[24]Id.
[25]Shari Rudavsky, Lawsuit says Juul lured in Carmel teen with candy flavors, bright colors and nicotine,Indianapolis Star (Aug. 27, 2019), https://www.indystar.com/story/news/health/2019/08/27/juul-teen-vaping-lawsuit-nicotine-addiction-youth-social-media-candy-flavor-irritable-headaches/2129949001/.
[26]Id.
[27]Id.
[28]Id.
[29]Angelica LaVito, E-cigarette giant Juul suspends sales of all fruity flavors ahead of looming US ban, CNBC (Oct. 17, 2019, 1:00 PM), https://www.cnbc.com/2019/10/17/e-cigarette-giant-juul-suspends-sales-of-fruity-flavors-ahead-of-looming-ban.html.
[30]Id.
[31]Id.
[32]Id.
[33]Id.
[34]LaVito, supra note 29.
[35]Id.
[36]Andrew Van Dam, Trump’s vaping crackdown could help Juul by ending the decade’s biggest small-business success story, Wash. Post (Sept. 23, 2019, 4:03 PM), https://www.washingtonpost.com/business/2019/09/23/trumps-vaping-crackdown-could-help-juul-by-ending-decades-biggest-small-business-success-story/.
[37]Note:Marketing, Federalism, and the Fight Against Teen Cigarette Use: Analyzing State and Local Legislative Options, 69 Case W. Res. 173, 188 (2018).
[38]Id.
[39]U.S. E-Cigarette Regulations–50 State Review, Pub. Health Law Center (2017), https://www.publichealthlawcenter.org/resources/us-e-cigarette-regulations-50-state-review.
[40]JUUL, https://www.juul.com/mission-values (last visited Oct. 23, 2019).
[41]Bach, supra note 3.
[42]U.S. E-Cigarette Regulations–50 State Review, Supranote 40.
[43]Bach, supra note 3.
