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While a lot of people were enjoying some schadenfreude watching Juul Labs be put through the gauntlet over the past several months, the more cynical among us were nervously reading the writing on the wall. If FDA, Congress, various lobbying groups, and attorney generals across the country were bold enough to challenge the most powerful vape company on Earth, we worried, what could possibly stop them from hunting down the more vulnerable vape companies out there? After all, there’s a lot lower hanging fruit out there, why not kill vaping by kneecapping it rather than cutting off the head?
Turns out these preoccupations were justified. The Attorney General of North Carolina, Josh Stein, has confirmed that he will not be limiting the scope of his legal actions to Juul Labs. On Tuesday, Stein announced that he would be adding eight other vape companies to a brand-new lawsuit. Namely, Attorney General Stein will be targeting Beard Vape, Direct eLiquid, Electric Lotus, Electric Tobacconist, Eonsmoke, Juice Man, Tinted Brew, and VapeCo. If you’re a vaper, you’re no doubt familiar with a number of these names.
The reason it’s entertaining to watch Juul Labs getting targeted with legal action is the same reason it’s so incredibly concerning to see smaller companies in the crosshairs. Juul, especially after their recent influx of Big Tobacco cash, has nigh-unlimited resources to defend themselves. As the Big Tobacco companies, themselves have proven time and again, you can throw lawsuit after lawsuit against a company, but if the cash is there for their defense, you’re never going to take them down. So, when Juul gets sued, it doesn’t feel like punching down to root against them. On the other hand, companies like Beard Vapes operate on a dramatically smaller scale. A single lawsuit with the force of public opinion behind it can crush them out of existence.
It's time we spoke bluntly: the situation is dire. How did we get here?
The Importance of Public Perception
Whether or not you believe there is a unified conspiracy working against the vaping industry, it is a fact that there is more to this string of lawsuits that just the legal cases and ramifications themselves. In any legal matter or dispute, the court of public opinion and perception is both the driving force and arguably the most important factor in determining the outcome.
For instance, the Juul lawsuit filed by Attorney General Stein did not come about because Josh Stein thinks it’s going to stop Juul, nor did it happen because this man gives a single damn about the “children” of the great state of North Carolina. Josh Stein filed this lawsuit because it would elevate him in the eyes of the public by attacking an entity perceived by voters to be the enemy of the people.
For months, if not years, publications ranging from The New York Times to lowly local magazines have run thinly sourced, sensationalist headlines demonizing vaping and blaming the industry for everything from teenage delinquency to cancer and death. Day after day, the public is bombarded with the message that “vaping is dangerous and this should scare you because your teenager is doing it”. Some articles are more explicit with this messaging than others, but the message is almost always there.
As a result, the Attorney General of North Carolina was presented with the opportunity to make a savvy career move by suing Juul. With the general public whipped into a frenzy behind him, this lawsuit could do nothing but propel him forward. After all, the legal expenses aren’t coming out of his own pocket and, even if he loses the lawsuit, he has shown himself to be willing to take dramatic action against the forces which endanger his people.
In fact, two of the most influential and fully madcap anti-vape groups in the country are vocally supporting this latest act of aggression. Matthew L. Myers, president of the Campaign for Tobacco-Free Kids released a statement saying “that Juul introduced a slick, sweet-flavored, high-nicotine product and marketed it in ways that one study found was patently youth-oriented. We applaud Attorney General Stein for taking action to bring about the changes needed to protect kids.” The fact that Myers even cites a study is amusing, but the fact that it only took a single study to persuade him is downright laughable.
The confused moms over at Parents Against Vaping E-Cigarettes took a stance, as well, calling the lawsuit “bold, necessary action” before going on to tell of “parents… who desperately seek treatment options for their nicotine-addicted kids, some as young as 12-years-old.” Every time we hear of PAVE issuing a statement, it seems like their ability to comprehend the world around them is slipping further and further away from them. Suing small companies who have been repeatedly and wrongfully demonized is hardly “bold action” by even the most generous definition. And if these people are hearing from parents “desperately” trying to cure their nicotine-addicted 12-year-olds, those parents are as unhinged as the PAVErs themselves. Imagine how comprehensively these parents would melt down if their children started doing actual drugs, God help them.
Situations exactly like these are the reasons that this carpet-bombing onslaught of bad press for the vaping industry is so dangerous. The articles themselves don’t shut down businesses and shutter manufacturers, but the stories provide cover and support for actions which would otherwise be deemed insanely egregious.
And the public opinion is far from being swayed back in vaping’s favor. Since the time of Josh Stein’s initial lawsuit against Juul, the media blitz has only intensified. Just last week, vaping was blamed, for the first time, in the death of a young man. In previous weeks and months, reporters, law enforcement agencies, and government officials have manufactured ties between e-liquids and just about every malady under the sun. As a result, the general public now believes that vaping is directly responsible for everything from lung diseases to explosions and now even “secondhand vaping”.
Stein even alluded to these stories in an interview with NPR after the announcement of his lawsuit. In fact, the interviewer himself is clearly on Stein’s side, prefacing a question with “The CDC recently linked one death to lung disease caused by vaping”, which is unequivocally a false premise. Stein then goes on to say “Well, it’s the first known death. But… the concern is the long-term health implications.” The people who could very well be responsible for the death of an entire lifesaving industry are proceeding to dismantle it without doing even minimal due diligence. It takes all of five minutes to understand that the “vaping death” story has literally nothing to do with the companies this man is going after. The mysterious Illinois patient wasn’t vaping Eonsmoke products or Beard liquids; in fact, his death was explicitly caused by using products that fill the vacuum when legitimate vaping products are unavailable.
So, at the end of the day, the question isn’t so much “how did we get here” as “how far is this going to go” and, perhaps even more importantly, “how hard are we willing to fight to prevent this from going as far as they’re willing to take it?”
The Juul Lawsuit
While public perception is driving this entire legal proceeding, a more direct answer to the question of “how did we get here” is that it really began in earnest with the Juul lawsuit filed by Josh Stein in May 2019.
In his initial statement, Josh Stein announced that his lawsuit was in response to Juul marketing their products to children and misleading the public about risks associated with those products.
“As a result of Juul’s deceptive and unfair practices, thousands of North Carolina kids are at risk of addiction to nicotine,” Stein said in his announcement. “Juul must be stopped from spreading this disease any further and must pay for its violations of the law. I’m taking this action today to keep these products out of kids’ hands, to keep the vapor out of their lungs and to keep the poison out of their brains.”
While we’re all used to it by now, it’s really important to understand the actual vitriol behind Stein’s messaging. In a few sentences, he mentions deception, disease, addiction, and poison, all in connection with Juul. But this statement, in addition to being infuriating, actually showcases the mindset of people like Josh Stein.
Lies, Disease, Addiction, and Death
Take, for instance, his invocation of “deceit” as characteristic of Juul. The deceit to which he refers is likely to be their marketing and advertising campaigns. While there’s no doubt that Juul ads paint a slightly sunnier picture of Juuling than may be the actual case, this is literally what marketing is. All marketing is an act of coercion and deception; ultimately, Stein is simply accusing Juul of advertising their products, which is perfectly legal.
Next, he mentions the “addiction to nicotine”. This is also important, given the way this sentence enters a person’s, especially a parent’s, mind. When someone tells you your child is in danger of addiction, the word tacked on after “addiction” is not what you focus on. Similarly, very few people have bothered to dive into what exactly nicotine addiction is and how it is entirely separate from the health risks typically associated with smoking. The facts are that nicotine addiction has a very similar impact on the body to caffeine addiction – an issue nearly 50% of adults deal with. Teens are also experiencing caffeine addiction at booming rates, but nobody is targeting Starbucks for their “kid-friendly flavors”. A big part of that is that people rarely think of coffee in terms of its addictive properties. With nicotine, people like Stein make sure the concept is front and center.
The line “Juul must be stopped from spreading this disease” does a lot of work in Stein’s statement as well. For one thing, it plays with the media narrative that basically every disease throughout the U.S. can be laid at the doorstep of vaping. Despite the fact that not a single one of these “mysterious illnesses” was linked to Juul, the implication in Stein’s statement fits comfortably between vague and accusatory.
He also manages to neatly weave together the brand name Juul with vaping in general, a trick the media has been pulling forever. By tying together Juul, vaping, street drug cartridges, and everything else out there under one umbrella term, you can condemn the entire industry for the sins of any single party.
The statement also implies that somehow Juul’s goal is to spread nicotine addiction throughout the country. Sure, you might be saying, it kind of is their goal, is it not? In some ways, yes, but the sentence equates Juul with addiction with the spreading of disease. While I’m certainly not interested in sitting here and defending Juul, it is also undeniable that Juuls have helped countless smokers switch from cigarettes to vaping. The entire and sole purpose of e-cigarettes is clearly not to ensnare non-smokers into an addicted lifestyle, which is purposefully the way he’s framing it here.
Taken as a whole, this statement is a perfect example of the strategy deployed against vaping: instill panic, blur the lines between vaping as a whole and its more despicable individual elements like Juul and the black market, and continue to stoke fear through sensationalist headlines and lazy science.
At the moment, Attorney General Josh Stein’s lawsuit against Juul is still ongoing.
The Current Lawsuit
In his lawsuit against Juul, Stein claimed to be acting in defense of the “teens”, per usual. His more recent assault includes the same generally ill-informed and cynical rhetoric. “Our complaints allege that these eight e-cig companies are helping to fuel an epidemic of vaping among high school and middle school students. One look at their marketing materials demonstrates just how egregious their sales tactics are – with flavors like cotton candy, gummy bear, unicorn, and graham cracker, they’re clearly targeting young people”.
This connects perfectly with his earlier lawsuit against Juul, in that his previous lawsuit also laid the blame for the “vaping epidemic” on the flavors being used in e-liquids. Of the companies listed in the lawsuit, only The Electric Tobacconist has released a statement thus far, saying “we absolutely affirm that these products don’t belong in the hands of children. As such, we have an extensive age verification platform that means a purchase can’t be completed until a person’s age has been established through a third party platform.”
As usual, the vape industry representatives are probably the only people actually taking actions in the general interest and wellbeing of the public. Flavored e-liquids are just like any other flavored adult product. While there have been outcries in the past over things like cinnamon whiskey and whipped cream vodka, public perception didn’t allow these protestations to truly catch fire. Surely, flavored alcohols appeal to kids just as much as flavored nicotine products – and they all appeal to adults. It’s a peculiar form of brain disease where these people seem to think that adults don’t care how things taste.
According to Stein’s lawsuit, the only acceptable flavors for e-cigarettes are tobacco and menthol. In other words, e-cigarettes have to taste exactly like cigarettes, or at least as exactly as possible. While flavored e-liquids have helped millions of people switch from tobacco cigarettes, Stein would contend that a single teenager picking up a Juul is enough to ban the potentially life-saving products for everyone. Truly pathological.
What’s Next?
The most significant thing about this lawsuit is that it’s the first major instance of a state government targeting vape companies outside of Juul themselves. As much as we love to hate Juul, they have taken a lot of the heat for the entire industry, digging into their massive coffers to protect themselves (and only themselves) while government officials remained seemingly unaware that other vape companies even existed.
This ignorance seemingly comes to an end this week as they’ve begun to take aim at significantly smaller entities within the vape market. If they can take down any one of these companies via this lawsuit, we can all rest assured they will not stop there. While it’s unclear exactly how they selected these eight unfortunate targets, these companies are certainly not the only ones manufacturing offensively flavored e-juices. As always, once the sharks smell blood, they will frenzy until there’s nothing left. Likewise, these particular sharks will not be satisfied after having crushed a handful of smaller vape companies – they’ll come for the whole thing eventually.
Likewise, this pursuit of the smaller companies may well be a response to their frustration with trying to tackle Juul. Despite their best efforts, Juul Labs seems to be too big to fail in many ways. So many people are using their products that, while they’ll sit still for bans on certain flavors and marketing strategies, they’d be likely to rise in opposition to completely closing off access to their favorite nicotine product. Smaller companies, however, do not boast the numbers or, in many cases, the broad loyalty base that Juul has.
For example, I personally love Beard Vape Co. Their #32 e-liquid is one of my favorite cinnamon flavors out there, but it’s far from the only one. If Beard gets burned at the stake, I won’t be too personally put out by it. That is, I’ll quickly figure out a new place to get a good cinnamon pasty flavor and the world will continue turning. Of course, as a politically active vaper, I would be affected on a different level by their demise – but not as a consumer.
This is where the problem lies. For the average vaper, these issues are all abstractions since they tend to view the industry as a consumer. Where one company goes under, another enters the market. As long as the personal access to their vaping preferences is not fettered, there’s no reason to complain. While eventually, these lawsuits threaten to engulf the entire market, they haven’t done so yet. For this reason, most vapers will not mobilize and take action until it’s too late.
If it’s hard to believe in an apocalyptic endgame scenario for vaping, let’s revisit Stein’s interview with NPR. The interviewer asks if he would be interested in seeking “a master settlement like the one in the 90s that saw tobacco companies agree to pay more than $200 billion over 25 years?” Stein’s answer isn’t a clear “yes”, but it’s chilling nonetheless and should set off alarm bells in every community. “I am doing everything in my power to prevent another generation of young people from becoming addicted to nicotine. How we get there, I’m open to any manner of ideas. I believe the FDA should take much stronger action than it has to date… I think Congress should take strong action. But I’m going to exercise my authority to the fullest to protect teenagers in North Carolina.”
There it is, in black and white. Stein is speaking in terms of “everything in my power” and being “open to any manner of ideas.” This is explicitly a “by any means necessary” platform for the destruction of vaping. Stein, and people like him, are never going to be satisfied with small victories. Juul’s long history of concession and backing down have done nothing but emboldened the Steins of the world, and now they’re looking to go for the jugular.
And once again, this brings me to the point where I call and plead for unity in the vaping community. If we can stymie these exploratory efforts, we can deny these lobbying groups and politicians the momentum they’re relying upon to crush the industry. We can’t wait until these laws and regulations come tearing down the walls of our local vape shop and boarding up access to our favorite online stores. We have to reach out, contact Congresspeople and educate our neighbors and friends. In the words of Bob Dylan, “It’s not dark yet, but it’s getting there.”
