As concerns persist over youth vaping, legal attacks on leading e-cigarette company Juul have intensified. Last month, Attorney General Josh Shapiro added Pennsylvania to the growing list of states suing Juul. The lawsuit claims Juul misled consumers about the health risks of nicotine vaping and improperly marketed the products to youths, and calls for a statewide ban on the company’s products, including tobacco-flavored ones. By the end of February, a group of 39 state attorneys general, led by Connecticut, Florida, Nevada, Oregon, and Texas, announced an investigation into Juul’s marketing practices. Meanwhile, the U.S. House of Representatives approved a bill to ban the sale of flavored e-cigarettes and other flavored tobacco.
Proponents of legal action against Juul suggests it’s necessary to hold the e-cigarette makers accountable for what the Food and Drug Administration declared an “epidemic” of teen vaping, with over five million teen users in the U.S. But critics worry that resulting restrictions or bans on e-cigarette sales will interfere with Juul use by adults who rely on the product to quit cigarettes, which are worse for health.
The Inquirer turned to a lawyer who has gone head-to-head with Juul, and the founder of the Drug Policy Alliance, to ask: Are these lawsuits a good idea?
By Neil Makhija
In just three years, the e-cigarette company Juul’s combination of fruity flavors, highly addictive nicotine salts, and Fyre Festival-style influencer marketing have put six million American children at risk of lifelong nicotine addiction. State attorneys general, counties, and individuals are now filing hundreds of lawsuits against Juul. Last month, one such lawsuit was filed by Pennsylvania Attorney General Josh Shapiro.
Shapiro is right to hold Juul accountable — but, like Oxycontin-maker Purdue Pharma, Juul may well go bankrupt, having already lost $24 billion, or two-thirds of its value. Pennsylvanians would be unlikely to receive treatment anytime soon via lawsuits against Juul alone, and Juul’s chief investors would still make away with billions of dollars. In order to protect kids and achieve any justice, state attorneys general have to look beyond Juul — to the Big Tobacco companies that fueled Juul’s rise.
State attorneys general have a powerful tool at their disposal none of them has yet used in this case. In the 1990s, 46 state attorneys general sued Big Tobacco companies and settled the $246 billion Tobacco Master Settlement Agreement (MSA). The MSA, still in effect, prohibits leading cigarette manufacturers from taking “any action” that “directly or indirectly” targets youth. The MSA also restricts companies from sharing cigarette formulas unless the recipient also abides by the agreement. The MSA was strikingly effective at reducing nicotine use among teens until Juul came along and evaded regulations.
Juul, founded as “Ploom” in 2007, never signed the MSA. But two of Juul’s largest investors did: Japan Tobacco International, one of the world’s largest tobacco companies and owner of the Winston and Camel brands, and Altria Group Inc., the parent company of Philip Morris. A third MSA signatory, R.J. Reynolds, is reported to have supplied scientific research to Juul through consultants.
When Ploom’s first vaporizer product flopped, Japan Tobacco International, through its Swiss-based entity, came to the rescue with a cash infusion and “access to floors of scientists.” R.J. Reynolds devised the potent nicotine formulation that ended up in Juul’s product. With Big Tobacco’s resources, “Ploom” became “Juul” and created a high school sensation. Once the masses were hooked, Altria invested $12.8 billion and agreed to give Juul’s flavored e-cigarettes prime shelf space at convenience stores, a common location for kids to buy them. Juul served as a vessel for Big Tobacco to hook new kids.
State attorneys general can take legal action to hold these Big Tobacco companies accountable for their support of Juul, which patently designed and marketed a product for children. In 2005, California’s attorney general successfully invoked the MSA and a related agreement to sue R.J. Reynolds for advertising in magazines read by kids. State attorneys general should try a similar approach in order to make Big Tobacco pay for addiction treatment that millions of families cannot afford.
Advocates who claim Juul is a “harm reduction” geared toward helping cigarette smokers quit disregard that Juul’s chief investor is the maker of Marlboro. Even if the FDA bans flavored e-cigarettes tomorrow, six million children vaping will be at risk of taking up cigarettes. For the first time in decades, Big Tobacco companies have a new customer base, thanks to their support of Juul.
In a world where addiction treatment is inaccessible and health care unaffordable, the least we can do is hold Big Tobacco accountable and prevent future conduct that targets kids.
Neil Makhija is a consumer protection lawyer and lecturer in law at the University of Pennsylvania Carey Law School. He represented children in the first class-action lawsuit against Juul Labs Inc. @NeilMakhija
By Ethan Nadelmann
Juul committed two great sins: It created a nicotine delivery device of great appeal not just to adults but to young people and sold 35% of itself to Big Tobacco. As a result, Juul is being pilloried by politicians, parents, and media, sued by assorted governments, and its products, alongside competing brands, banned around the country.
But Juul did something else: Millions of Americans already have quit smoking by switching to vaping, some with cartridge-based systems like Juul, some with “open systems” that allow consumers to mix their own flavors. Juul’s product, now being adapted by other manufacturers, may be the most effective of all.
If the roughly two million Pennsylvanians who smoke cigarettes switched to vaping e-cigarettes, that would represent one of the greatest public health advances in state history — even if some young people became regular vapers.
Let’s start with the facts: Vaping e-cigarettes is safer than smoking cigarettes — much safer, according to the National Academies of Science, Engineering, and Medicine, and approximately 95% safer, according to the Royal College of Physicians and Public Health England.
E-cigarettes are a prime example of a “harm reduction,” akin to needle exchange programs to stem the spread of HIV/AIDS, supervised injection facilities to eliminate overdose fatalities, and methadone to help people dependent on illicit street opioids lead safer, healthier lives.
Harm reduction makes sense for tobacco because, as Michael Russell, the father of tobacco harm reduction, stated: “People smoke for nicotine but they die from the tar.” Many people find nicotine hard to quit once they’ve started using regularly, but it alone causes relatively little harm to health. That’s why the FDA recently approved an oral tobacco pouch, snus, for harm reduction, and why they’ve allowed the sale of heat-not-burn tobacco devices like IQOS.
Snus and IQOS aren’t 100% without risk, but they are, like e-cigarettes, much safer than combustible cigarettes, which prematurely kill half of all long-term smokers. They also help people quit smoking. A randomized trial found e-cigarettes almost twice as effective as gums, patches, and other nicotine replacement therapies. Smokers trying to quit reportedly find it easier to do so with the same nontobacco flavors young people like.
Seven years ago, more Americans than not correctly perceived vaping as safer than smoking. Now polls find most Americans incorrectly thinking the opposite, and blaming nicotine vaping for the 2,807 hospitalizations and 68 deaths linked to e-cigarettes since last year — when the actual cause was illegal, tainted THC (i.e., marijuana) vape cartridges. Such misperceptions are deadly, potentially deterring millions of smokers from switching to vaping and even moving some vapers back to smoking.
While Juul should be held accountable for marketing directed at young people who were not already using more dangerous tobacco products, lawsuits don’t seem the right approach. Company executives, eager to placate the FDA, already halted marketing and the sale of flavors that could be construed as targeting young people and reportedly have designed a version with an age-proof lock. Meanwhile, restrictions on Juul resulting from legal action — and the ban Attorney General Shapiro calls for — would likely drive consumers to more dangerous products like lower-quality e-cigarettes and/or combustible cigarettes.
If there’s a silver lining to lawsuits, it’s that judges typically abide by higher evidentiary standards than governors and legislators. Late last year, judges in New York and Massachusetts blocked vaping bans rashly ordered by governors. Sometimes there’s no better check on a moral panic than a court compelled to review the evidence in an objective manner.
Ethan Nadelmann is the founder and former executive director of the Drug Policy Alliance.