Irony alert – company that targeted a 'world without smokers' fights FDA ban
Wednesday, June 29, 2022 at 13:20 You may have seen the announcement last week that the US Food and Drug Administration wants to stop the e-cigarette giant Juul selling its products in America.
Subject to appeal (the company immediately went to court and won a temporary stay of execution) the FDA's decision delighted public health activists in the States while enraging vapers and vaping advocates worldwide.
I share the latter’s incomprehension if not their occasionally demented howls of anger because why would any government body remove from sale a product that has been used by millions of adults to quit smoking and, potentially at least, improve their health?
Launched in 2015 Juul quickly became the leading e-cigarette in America with a market share of 72 per cent by September 2018. The product, a sleek, tactile device that resembled a USB flash drive, not only looked and felt superior to many of its rivals, it was also simple to use, overcoming persistent complaints that many e-cigarettes were just too fiddly.
Problems started when the product began to be associated with an alleged ‘vaping epidemic’ among teenagers in America. (In 2019 27.5% of high school students and 10.5% of middle-school students were said to have admitted using an e-cigarette in the previous month.)
At the same time public health and anti-smoking organisations in the US were quick to fuel seemingly unjustified fears that vaping might become a pathway to smoking and that vaping was far from harmless.
In 2018, under increasing political pressure in the US, Juul removed most of its flavoured products from stores with the exception of menthol and tobacco on the grounds that the latter were the least attractive to children.
A year later – having sold a 35% share of the company to Altria, manufacturers of Marlboro cigarettes in the US, which effectively took control – Juul agreed to extend the policy to online sales. Controversially it also dropped its support for a measure to overturn a ban on the sale of most vaping products in San Francisco, the company's’s home city.
The FDA’s decision not to grant Juul’s application (submitted two years ago) to continue selling its products in America seems to rest partly on whether the benefits to public health (ie adults switching from cigarettes to a reduced risk product) justify their potential appeal to high school teenagers.
Had the FDA taken this decision a few years ago there might have been some merit in it. (I stress the word 'might' because prohibiting a legal consumer product is rarely justified and I don't think it would have been in this case.)
The irony however is that not only have vaping rates among high school students in America peaked and are now falling, Juul is no longer the most popular e-cigarette in that age group. (I believe its share of the market is half what it used to be.)
But whichever way the battle with the FDA unfolds, Juul’s story offers some salutary lessons. There may for example be some truth in the argument that the company’s troubles began with a glitzy launch party for its new e-cigarette in a fashionable industrial loft space in Manhattan in 2015.
According to Jamie Ducharme, author of ‘Big Vape: The Incendiary Rise of Juul’, the event ‘marked both its beginning and the beginning of its end‘. ‘The goal,’ wrote Ducharme, was for cool New York City socialites to be seen pulling on Juul vaporizers.’
Likewise Juul’s first ad campaign, Vaporized, ‘was fun and colorful, full of fresh-faced models dressed in trendy clothes flirting with the camera and posing against colourful backdrops.’
Personally, if everyone involved is of adult age, I don't see much wrong with that because I have always argued that e-cigarette companies should be allowed to sell their devices as an attractive recreational product, not just as a quit smoking tool.
If I have a beef with Juul’s founders it's not their influencer and social media led launch but declaring that the company’s aim was to make cigarettes obsolete and create a ‘world without smokers’.
Not only was this disrespectful to adults who prefer smoking to vaping (and, yes, such people do exist), it was never going to pacify a puritanical health lobby that will never be happy until all recreational nicotine use has been driven to the margins of society, if not eradicated altogether.
What vaping advocates have to understand is that the creeping prohibition of smoking – which they do very little to oppose – poses the same existential threat to e-cigarettes because the next logical step is the eradication of vaping.
There's a lesson as well concerning appeasement. Granted Juul was in a difficult position in 2018/19 and under enormous pressure but appeasement (or 'selling out' as some critics dubbed it) rarely works because it emboldens the opposition to take that ‘next logical step’.
We’ve seen it countless times before, in Britain and around the world. Smoking bans were only meant to regulate indoor public places but they were soon extended to an increasing number of outdoor public spaces. In the UK graphic health warnings on packs of cigarettes were followed by a display ban, then plain packaging. Now campaigners want heath warnings on individual cigarettes. It never stops.
So why did anyone think that a voluntary ban on Juul's flavoured e-cigarettes, albeit with exemptions for tobacco and menthol flavours, would be the end of it because that’s not how the tobacco control and public health industries work. Perhaps Juul felt they had no choice and were playing for time but it was almost inevitable that the authorities – in this case the FDA – would take further steps.
Meanwhile what are we to make of the somewhat hysterical claims by some vapers (and vaping advocates) that if the FDA's ban on Juul's vaping products is upheld “countless adult smokers will continue to smoke or return to smoking and die”? If (and it’s a big ‘if’) the ban on Juul is upheld my guess is that the majority of vapers who currently use Juul will simply switch to a rival e-cigarette.
I certainly don't buy the argument that a significant number of Juul customers will return to smoking. There might be some nostalgia for smoking among some ex-smokers (see 'I miss smoking') but that's a different issue. It doesn't mean that a significant number of ex-smokers will relapse when their vape of choice is taken away.
To be clear I’m fiercely opposed to bans on any nicotine product but the idea that by removing Juul from the market the FDA will condemn smokers to death feeds several misleading narratives that I have written about before so I won't repeat myself in full here. Suffice to say:
The first [narrative] is that most smokers would switch to e-cigarettes if only they were properly informed and given access to reduced risk products. Hard though it is for the more evangelical vaping advocates to understand, many smokers have tried vaping and have chosen not to switch because, for them, e-cigarettes aren’t as enjoyable as traditional cigarettes.
The second narrative is that smokers (and vapers) are victims of their habit and are not in control of their choices. It is therefore assumed - wrongly in my view - that a ban on flavoured e-cigarettes will lead to a large number of vapers relapsing and going back to smoking. What does that say about vapers? It says that even those who have quit smoking completely are so weak-willed or addicted to nicotine that any sort of ban will send them running back to combustible tobacco. Having given up smoking - most likely on health grounds - and switched to vaping, why would you go back to a product you believe is dramatically more harmful and likely to kill you?
The third narrative is, if you go back to smoking as a result of a ban on e-cigarettes, flavoured or otherwise, it’s not your fault, it’s the fault of those pesky prohibitionists. Vapers and vaping advocates, stop playing the victim card! It’s great that e-cigarettes exist to help smokers quit (although it would be better still if they were accepted as a legitimate recreational product in their own right), but if risk reduction options are prohibited, and you genuinely want to quit smoking, don’t use that as an excuse to continue or return to smoking. It’s your choice. If you want to quit, quit.
Meanwhile I can’t be the only person who is a little weary of the argument that if e-cigarettes are banned why aren’t combustible cigarettes banned as well? I’ve seen that logic advanced many times on social media by frustrated vapers and my response is simple.
Neither should be banned. Whatever the health risks (and I accept that on current evidence vaping poses a fraction of the risks of smoking) genuine liberals must fight and defend the sale and consumption of both products.
Sadly this is where smokers’ rights campaigners like me part company with many of our vaping counterparts. I’ll fight day and night for the right to vape but I see very little evidence that pro-vaping groups are prepared to oppose the punitive regulations being imposed on smokers and combustible products.
The pursuit of pleasure isn’t always rational. Many smokers have tried less harmful alternatives such as e-cigarettes, heated tobacco and nicotine pouches but don’t enjoy any of them as much as smoking.
The challenge for the vaping industry is to develop reduced risk products that appeal to many more smokers, not join forces with the stop smoking brigade to coerce smokers to switch to something that gives them significantly less pleasure.
Much as vaping advocates might want to draw a distinction between reduced risk products and combustible tobacco, divide and conquer is not an option for a successful long-term war on prohibition.
The battleground has to be choice, for smokers and vapers alike, and if an adult chooses to smoke and doesn’t want to quit or switch to a ‘safer’ product that decision must be respected too.
Sometimes the vaping industry seems to forget this, putting at risk its own long-term future which cannot be based on health alone but must embrace fully the principles of choice and personal responsibility.
Driven by hubris Juul arguably flew too close to the sun. Unlike Icarus however the company - which since 2018 has been in the hands of Altria, the tobacco company that sells Marlboro in the US - lives to fight another day and if you believe in consumer choice you should root for them big time in their battle with the FDA.
Nevertheless, let’s be clear. Whatever happens this is not a prelude to millions of vapers being forced back to smoking “to die” as some people are claiming, somewhat hysterically.
As it happens I am optimistic that Juul will win its full appeal against the FDA’s decision but let’s hope that, going forward, both the company and the vaping industry at large adopt the more reasonable if lesser ambition of extending choice for adults who enjoy nicotine without targeting a ‘world without smokers’.
There’s a big difference between the two and a world without smokers (a concept quite offensive if you enjoy smoking) will only accelerate the day when we have a world without vapers. If that’s what you want, go ahead.
See also: Juul seeks to extend stay on FDA ban, saying agency did not evaluate all its evidence (CNBC) and It's too simple to call the Juul ban a public health triumph (Time).
Reader Comments (6)
Regarding teen vaping - it is thing whether vaping advocates agree or not. The fights we are currently having in our family because the 15 year old granddaughter has been caught vaping many times in the last year and she does it because, according to her, all her friends do it. None of them smoke because that's no longer cool - although she threatens her parents that if she can't vape then she'll smoke. She doesn't get her way, she gets grounded for the good that will do :(
As for those who say if vaping is banned then they'll go back to smoking... it just shows that they really like the act of smoking or they would quit rather than vape which mimics every aspect of smoking and is really why they do it if they were honest about it.
I am also rather bemused by posts I've seen that claim they vape low nicotine devices but if they are "forced" back to smoking they will be pushed back into consuming high levels of nicotine in tobacco, and they mention how much. How, in the Uk at least, I wonder do they know how much nicotine is in tobacco? I have searched all my packets thoroughly and nowhere is there any information about how much nicotine, or tar, for that matter is in each pack because that information was removed with consumer rights to product information with "plain" packaging.
The only way to save vaping, and to keep the prohibitionists' mucky hands off their product of choice is to fight for smoking and freedom of choice. All that they are doing now by making it all about health is to give ammo to both our enemies who think vaping is bad for you even though it might not be as bad for you as they claim smoking is, it still has a relative risk which is unacceptable to healthists.
Also remember the ruse the anti smoker industry used in saying "if tobacco was discovered today it would be banned immediately" ... well, vaping has been discovered, in relative terms, "today" so what can the vaping industry expect... ie - a JUUL ban first followed by others - the Elf bar for example?
I wish JUUL luck in its appeal despite the fact that it attacks me and my product of choice.
Their friends are not in tobacco control, their friends are fellow consumers who enjoy smoking, couldn't give a toss if people enjoy vaping, and would like us all to join up and fight each other's cause rather than attack one in an effort to promote the other.
For context
Chocolate cigarettes “recruit” children to smoking
2003
"Sweet manufacturers in the United Kingdom have long refrained from making sweets that mimic cigarettes because of protests from the antismoking lobby."
https://www.bmj.com/content/326/7384/302.3
How much revenue do goverments raise from vaping?
Genuine question.
The reason I ask how much goes to the Treasury from vaping is this -
Smoking? It's seriously good for the Treasury, Macmillan told Eden
2008
“According to formerly classified government records released today by the National Archives, in 1956 Macmillan dismissed the health risks posed by smoking as “negligible, compared with the risk of crossing a street”
"However, his caveat that there was not yet “scientific proof” of the hazards would have alarmed the growing anti-smoking lobby, and so he conceded that the “statistical picture is clear” and said the Government’s draft statement on the issue appeared “restrained”.
“For his part, Macmillan continued to smoke, and apparently suffered no ill effects. He was forced to stand down as prime minister in 1963 when he was wrongly diagnosed with prostate cancer. Macmillan lived another two decades – eventually dying a month short of his 93rd birthday.”
http://www.independent.co.uk/news/uk/politics/smoking-its-seriously-good-for-the-treasury-macmillan-told-eden-836762.html
How much goes to the treasuries of various countries may be relevant to the way they treat vapers and the manufacturers that cater to them.
We get a good kicking to keep the revenue pouring in but in some countries vaping is being obliterated.
I was watching a discussion on how the goverment intended to replace the tax on petrol and oil in future with a tax on mileage for electric cars and how it could be done, which altered my perspective on tobacco somewhat.
And just like tobacco companies, Juul is being targeted for class action law suits. Included in the action against ecig companies is (Altria) Philip Morris too. If it all goes badly for PMI, who will buy its products when it has alienated its core consumers with abusive campaigns.
They'll never learn. It's not about health, they say its not about health, and then make it all about health which gives the enemies ammo to fire at them.
I have some sympathy with Juul. I believe it wanted to make a difference to health but was misguided in using stigmatisation to achieve it and trusting that health was the most important issue over freedom of choice and the right to be free from harassment when using legitimate consumer products - but I hope PMI gets what it deserves because it simply jumped aboard the ecig bandwagon in hope to keep hold of its profits and thought abusing and stigmatising its key customer base would help to get even more money rolling in.
https://www.drugwatch.com/e-cigarettes/lawsuits/
A decade ago (with the TPD2) the message was that the autorities could ban as much as they liked, vapers would not obey and would not go back to pay ludicrous taxes ever again and politicians listened. Now vapers are claiming they are such spineless addicts with no will power whatsoever they will do and pay whatever they are told to do with quite the opposite result and they wonder why this is.
Luc
I was wondering if the attack on vapers in America was anything to do with the Master Settlement Agreement and the various States not wanting to lose their Tobacco payments.
States Misuse Tobacco Master Settlement Agreement Funds
2020
"As states struggle with the fiscal impact of the COVID-19 lockdown, many of them are left with a legacy of misuse of the funds they received from the landmark, multi-jurisdiction legal settlement reached with tobacco companies in November of 1998.
Attorneys general for 46 states, Washington, D.C., the U.S. Virgin Islands and Puerto Rico entered into the Tobacco Master Settlement Agreement (MSA).
The settlement promises the federal and state governments billions in per year restitution to fund anti-tobacco efforts and promote public health."
"According to Andrew Cline of the Bartlett Center, thanks to an increase in tobacco sales during the COVID-19 shutdown — likely due in part to Massachusetts residents crossing the border where more retailers remained open for business — revenue from the tobacco settlement was $2.9 million above plan."
"Meanwhile, several attorneys general are moving forward with the goal of using the MSA as a model for a new agreement for vaping products.
Juul Labs, for example, has been hit with literally hundreds of lawsuits from local and state governments seeking restitution and the cover of injury had by youth and adults that may have been harmed by using the company’s pod products.
The health impacts of vaping are still being debated, along with the impact of smokers switching from traditional combustible cigarettes to other products that present fewer health risks.
Still, there is little reason to believe states will be any more responsible with money from a vaping settlement than they have been with their tobacco settlement funds."
https://insidesources.com/states-misuse-tobacco-master-settlement-agreement-funds/
Of course it doesn't apply to us, but as with most things, our govenment will eventually follow the Americans even if they don't know why.