North Carolina Attorney General Joshua Stein filed a lawsuit Wednesday against popular e-cigarette maker Juul Labs, making it the first state to take legal action against the company.
Several of the state’s requests overlap with existing Food and Drug Administration policies, including prohibiting the sale of Juul and other e-cigarette products to minors. But the state’s complaint goes further: FDA guidelines restrict the sale of fruit or candy flavors in stores, allowing menthol, tobacco and mint to be sold. North Carolina’s request would bring mint off the market in that state, in addition to the popular flavors like mango and cucumber.
Also, all Juul flavors can be purchased online after customers verify their age on the company’s website. Stein hopes to restrict those sales, too, by preventing all customers in North Carolina from purchasing flavors online that aren’t tobacco or menthol.
And the state is asking the court to apply a marketing and advertising ban that mimics that of the Tobacco Master Settlement Agreement, which went into effect in 1998. It would prevent the company from creating emails, advertising or social media marketing aimed at minors. It also asks the court to block Juul from advertising outdoors and near schools or playgrounds, sponsoring “sports, entertainment, or charity events,” offering free or discounted samples, or promoting products with fashion or media outlets that primarily target consumers under 30.
“Addicting a new generation of teenagers is unacceptable, illegal and that’s why I’m taking action,” Stein told The Washington Post. “This is about a company that is selling its product predominantly to [youth]. There has to be some limitation on the way they do business.”
“I certainly would welcome any state that wants to bring a similar action,” he added.
In a statement Wednesday to The Post, a Juul spokesman said, “While we have not yet seen the complaint, we share the Attorney General’s concerns about youth vaping, which is why we have been cooperating with his office and why we have taken the most aggressive actions of anyone in the industry to combat youth usage.”
In the past year, Juul ceased the sale of all flavors besides Virginia tobacco, menthol and mint to traditional retail stores. The company enhanced its online age-verification process and shut down its Facebook and Instagram accounts. Juul says it also revamped its marketing and commercial campaigns, strengthened its retailer compliance program with over 2,000 secret shopper visits per month and led industry support of state-based Tobacco 21 laws, which raise the legal minimum age for all tobacco products to 21.
According to Scott Gottlieb, a former FDA commissioner, attorneys general have an important role to play in keeping nicotine products away from children and teens.
“[Nicotine addiction] is becoming a big enough health problem that even states are going to feel it,” he said, noting both the fiscal and public health impact on states. “All the gains we made in smoking could be reversed.”
Under Gottlieb’s leadership, the FDA issued new policy in March restricting the sale of flavored e-cigarettes. Agency rules, which are binding on regulated entities, do not preempt attorneys general from creating additional restrictions at the local level.
Between 2000 and 2017, tobacco use dropped from 28 percent to just above 5 percent of teenagers in the United States, the lawsuit says — a feat viewed as an incredible public health success. But in the three years since Juul was introduced to the market in 2015, that pattern changed.
Last year, Juul Labs’s market presence grew sevenfold, according to a study published by Tobacco Control, with users consisting mostly of individuals under age 21. A study released by the North Carolina Department of Health and Human Services showed that within the past year, use of e-cigarettes increased among high-school-age youth by 78 percent, and among middle-schoolers by 48 percent.
Vape sales in the United States have climbed. At the same time, Nielsen data confirms cigarette sales declined by at least 5 percent last year and up to 8 percent in recent months; a single percentage point represents 2 billion to 3 billion fewer cigarettes smoked. Another study, funded by Juul, showed that after three months of using Juul products, nearly 50 percent of adult smokers moved off combustible cigarettes completely.
The North Carolina lawsuit argues that the flash drive-sized e-cigarette has played a central role in “fostering the epidemic of e-cigarette use among youth.”
“To the extent that [Juul] has anecdotally been shown to help some adults quit smoking, that’s great,” Stein said. “Adults seeking to quit smoking can use the same flavors currently available to them, tobacco and menthol.”
Research demonstrates that many adults also prefer sweet flavors in their vaping devices, “and disliked flavors that elicit bitterness or harshness;” according to a systematic review of nearly 13,000 peer-reviewed studies, though it found inconclusive evidence of a connection between flavors and cessation.
Although “Juuling”— the verb used by fans of the device — can be an aid in quitting cigarettes, the company has been accused of not primarily focusing on cessation.
“We don’t think a lot about addiction here because we’re not trying to design a cessation product at all,” Juul research engineer Ari Atkins told the Verge in an often-quoted interview in 2015, adding later that “anything about health is not on our mind.”
The founders, however, contend that creating a “satisfying alternative to smoking” was the goal from the beginning.
In a March op-ed, Juul Labs chief executive Kevin Burns outlined the tangible changes the company made to combat youth Juuling after consulting with the FDA. But opponents like Stein and Gottlieb believe the Juul business model to date has been almost predominantly an on-ramp for new youth smokers.
“They cleaned [their marketing] up and it’s currently focused on adult smokers,” Gottlieb said. “But you can’t un-ring the bell and undo what was done since they launched.”