Thanks for the Memories
Juul, the valiant champion for vapers everywhere, has finally given up pretending that they care about the vape industry. While Juul Labs is, unfortunately, at the center of the roiling vape debate, they’ve decided to distance themselves from the Vapor Technology Association (VTA), just as they launch into a lawsuit against the FDA. Good timing, guys, don’t want that kind of aggressive action tied to your brand!
Over the years, Juul Labs has been the top financial contributor to the VTA. On Tuesday of this week, however, they announced that they would not be renewing their membership with the VTA. The e-cigarette titan also released a statement, entitled “Our Commitment to the PMTA Process”. In this statement, and through severing their ties to the VTA, Juul has, in essence, rolled over on their backs for the FDA as the VTA prepares to go to war with the government agency.
Just in the past week, the VTA took legal action against the FDA, challenging their new deadline for the submission of premarket tobacco applications (PMTAs). According to their lawsuit, the FDA has “changed the rules of the game several times” and created deadlines which are literally impossible for the vast majority of vape companies to meet. Over the years, the FDA has shifted the goalposts a handful of times, once with a deadline as far out as 2022, now with a deadline coming up in just a few months.
PMTAs are incredibly time-consuming and costly, requiring companies to leap through countless hurdles and dedicate thousands of hours to research and bureaucratic compliance. In short, the FDA’s upcoming deadline will bankrupt 90% of the vape market, and decimate the entire industry. As such, the VTA has taken action which they hope will result in a binding court decision forcing the FDA to play nice.
Juul Rolls Over For the FDA
Juul, however, wants no part in this – and the reason is clear. Juul Labs will be one of the few companies to survive the PMTA deadline. With a gigantic net worth and the support of Big Tobacco, PMTAs are no problem for Juul Labs. In fact, it will prove a massive boost to their value as the deadline conveniently clears out the competition for them, bringing them that much closer to a comprehensive monopoly on vape products.
Moreover, Juul is concerned about the press. Having already found themselves at the center of a hateful media maelstrom, Juul Labs has decided they can’t be viewed as hostile to compliance with the FDA. Instead, they’ve positioned themselves as working closely with the FDA to make sure all the teens in America are safe from their products. Reports of their company working to sue the FDA would irreparably sully this carefully-constructed image.
Nor is this the first time Juul has butted heads with the VTA. Juul has long famously supported Tobacco 21 legislation, as well as the banning of e-liquid flavors. The VTA has, correctly, taken a firm stance against both those things, acknowledging the uselessness and pitfalls of Tobacco 21 while also interpreting the potential fallout from banning vape flavors.
But Juul has even more to gain by publicly showing its support for the FDA. While they will certainly have no issue paying for the testing and research which goes into a PMTA, there is still no guarantee that their products will be approved. Scott Gottlieb, former FDA fuhrer, recently tweeted that “the crisis created by products like Juul put this entire segment at grave risk and made it hard to prove a net public health benefit for a Juul-like product”.
Juul has no doubt heard these votes of no confidence, and ran a cost-benefit analysis deciding that it was time to cozy up with the FDA. It is clearly for that reason that their statement reads as follows:
“We are fully committed to the current PMTA process and are confident in the content and quality of the materials we will submit with our application by May 2020. We are not appealing the recent federal court case in the District of Maryland and similarly do not support the recent lawsuit against FDA filed by the Vapor Technology Association in the Eastern District of Kentucky”.
This cowardly statement clearly seeks to ingratiate the company with officials at the FDA. “See, we’re playing nice, even though the rest of the vape companies won’t!” But it goes even further than that. The language in the statement cleverly uses the old “if you’re doing nothing wrong, you’ve got nothing to hide” argument by implying that the reason they don’t fear the PMTA process is simply because their products are good and safe. Surely, other companies are overreacting because they’re selling unsafe products which would never pass the PMTA. This is clearly nonsense, but it’s likely to be an effective rhetoric.
During the VTA’s lawsuit, they’re sure to face fire from all directions; Juul Labs is simply the latest entity to take aim. In one single statement, Juul has finally let everyone know exactly where they stand. After almost singlehandedly creating a firestorm which threatens to engulf the entire industry, they have made it clear that they will not be the ones fighting to put out the fire. Instead, they’ll be content to seek refuge outside the flames and let the rest of us burn. Once the embers die down and the industry has been disintegrated, Juul Labs will be more than happy to step into the void and monopolize the entire industry.
Surprised? We Shouldn’t Be
I’ll admit that I held out some optimism regarding Juul’s involvement in this whole ordeal. I even wrote about it a few weeks ago, expressing some extremely guarded hopes that Juul might come through in this fight, carrying the industry through with them. Surely, what’s good for the whole industry would be good for them too, right?
But this is clearly not the case – and it’s not like this is the first time that Juul Labs has broken with the industry on important issues. Tobacco 21, for instance, was an early indication that Juul did not see anti-vaping legislation the same way the rest of us do. After all, they exist in a category all to themselves.
The next obvious indication was when Juul willingly pulled all their fruit-flavored e-juices from shelves before the FDA even ordered them to do so. But that wasn’t the end of it. In a statement from Juul CEO Kevin Burns, he goes even further, saying “there is no place for kid-appealing flavors in the marketplace. That is why we would also support an outright ban on such flavors, including those that mimic candies or childrens’ foods. We also support the FDA’s swift enforcement against any manufacturer that packages or markets its vapor products in a way intended to promote use by minors.”
Of course, every single line item in that statement is something of which Juul Labs themselves have been accused in the past. While other vape juice flavors may taste like candy or have goofy names, no other e-liquid has so frequently found its way into the hands of underaged users. Again, however, Juul seeks to show the FDA what good little boys they are, while immediately turning around to point the finger at everyone else in the industry, accusing other companies of the things for which they themselves are guilty.
Despite Juul’s gutless obsequiousness, many industry watchers expect the titan to go down with the rest of the industry if the anti-vape lobby gets their way. No matter how hard they struggle to differentiate themselves from the VTA and others, experts say, it is for Juul and Juul alone that the hottest flames of anti-vape sentiment burn most brightly. In watching Juul CEOs testify before Congress or listening to anti-vape rhetoric, you would easily forget that any other vape companies even exist. These people may understand, in theory, that other vape companies also have candy-flavored e-liquid, but that’s not what the kids are using. Vape shops famously do not sell to minors, while gas stations and liquor stores (where Juuls are most commonly sold) are much more lax in their enforcement of nicotine laws. As such, try as they might, Juul may not be quite the infallible titan they believe themselves to be. In the meantime, all they’re doing is showed themselves to be servile, groveling, and utterly traitorous to the industry which spawned them.
A Response from
The Vapor Technology Association
While Juul blindsided the VTA with their public statement, the association quickly responded, releasing their own statement on Wednesday, in which they attempted to set the record straight.
“VTA is surprised by Juul’s stated opposition to the filing of VTA’s complaint against FDA because Juul recently opposed the efforts of the American Academy of Pediatrics to grossly accelerate the PMTA deadline in another lawsuit and sought similar relief in that federal lawsuit. In addition, Juul’s designated VTA Board member participated in the VTA Board meeting held to consider the lawsuit against FDA, but never objected. In fact, the vote to move forward with the lawsuit was unanimous.”
So, basically, the VTA opens their statement by pointing out Juul’s glaring hypocrisy. While nobody in the vape community has truly respected the company for years, this should hopefully cast some aspersions on Juul’s attempt to portray themselves as the FDA’s biggest fanboys. However, this statement also begs the question: what happened between the time of that vote and Tuesday of this week? Was their VTA representative not in the loop? Did Juul never take their membership in the VTA seriously to begin with? It seems possible that they once considered their affiliation to the group to be something like being a member of the Better Business Bureau or the AAA Auto Club, and once they actually followed through with a lawsuit, they realized they had to jump ship. Or they had a meeting of their own to determine what fallout from this lawsuit could potentially land in their front yard. We’ll never know, but it is definitely an interesting reversal.
The VTA statement continues: “As a reminder of what is at stake, the FDA recently warned that a precipitously accelerated PMTA deadline would lead to the ‘mass market exit of ENDS products’ and cause adults who have quit to return to smoking – a ‘public health outcome which should be avoided if at all possible.’ VTA’s and Vapor Stockroom’s lawsuit against the FDA was filed to avoid that ‘mass market exit’ about which FDA warned and to preserve the diverse and vibrant industry of companies dedicated to providing adult smokers an alternative to deadly cigarettes.”
In this section, they point to an oft-forgotten statement by the FDA themselves specifically outlining exactly what we discussed above. Interestingly, they refer to this outcome as catastrophic and “to be avoided if at all possible”. So, clearly the FDA are fully aware of the implications of their latest deadline. They absolutely acknowledge and understand that an accelerated PMTA deadline will lay low the entire vaping industry and leave vapers with zero recourse, likely pushing thousands, if not millions, back onto cigarettes. It sounds insane, but this story is truly a perfect illustration of American capitalism and bureaucracy working hand-in-hand to destroy things which are positive for the vast majority of Americans. After all, what’s more American than that?
Juul’s Long History of Stabbing
The Industry in the Back
Remember how we mentioned Juul’s coziness with the idea of Tobacco 21 legislation? Let’s delve a little deeper into that rabbit hole to see just how insidious and callous Juul’s attitude is towards the vaping industry in general.
At their recent hearing before Congress, Juul’s founders, James Monsees and Adam Bowen, positioned themselves as basically health advocates trying to help smokers switch from cigarettes to a healthier alternative. While this is 100% true of vaping in general, there seems to be some truth to Dr. Pamela Ling’s assertion that Juul is “taking advantage of” harm-reduction rhetoric.
For instance, Juul Labs’ positioning as a pro-Tobacco 21 company has seen some nefarious implications in states like Virginia, Arkansas, and Utah. Wielding their considerable capital and political heft, Juul helped usher in Tobacco 21 laws in these states which, conveniently, lack any enforcement measures. In Virginia, punishment is only indicated for retailers and insulates tobacco companies entirely.
At present, there are four federal bills up for consideration. Each of these bills proposes raising the federal smoking age to 21, and three of them are backed by Juul, included the most well-known of the bunch, a bill sponsored by Sen. Tim Kaine (D-Va.) and our old friend Senate Majority Leader Mitch McConnell (R-Ky.) During Juul’s push to get this legislation passed, they have worked hard to ingratiate themselves among black voters through recruitment of Al Sharpton and NAACP leader Ben Jealous. They’ve even donated $7.5 million to a historically black university.
If it’s confusing to see Juul allied with anti-vapers on the issue of raising the tobacco age, upon closer examination it becomes clear that this is just another part of their offensive to position themselves as an earnest company who just really wants to help people out. As we’ve covered previously, Tobacco 21 laws are utterly meaningless in terms of actually cutting down on youth vaping or addiction rates in general. These laws are toothless, easily circumvented, and their only real impact is to place a great burden of criminality upon young, typically marginalized, people.
So, for Juul Labs, supporting these laws is a net gain with no real drawback. They’re able to point to their efforts on Tobacco 21 legislation and say, “hey look we’re doing everything we can!” while supporting laws which will have a completely negligible impact on their bottom line.
Juul’s Unwillingness to Fight Has
When Juul willingly pulled all their flavored Juul pods from brick-and-mortar shops a couple years ago, it was arguably one of the earliest indications that they didn’t have any intention of sticking up for the industry. At the time, industry watchers loudly proclaimed that if Juul wouldn’t fight for themselves, they certainly wouldn’t fight for the rest of us. If the FDA could get them to pull their products from stores without confrontation, it would only embolden the anti-vapers. The next step would be to ban all flavored nicotine products everywhere. Skeptics called them crazy and vapers hoped it would never come to that, but that’s exactly where we find ourselves today.
Specifically, that’s where all five boroughs of New York find themselves today. A City Council bill has recently picked up steam, with 21 co-sponsors and the support of Mayor Bill de Blasio. In a statement of support, Mayor de Blasio said, “Flavored e-cigarettes give big tobacco free reign to hook a generation of children on nicotine products. It’s time we say enough is enough, and do our part to protect the health and safety of our children.” Clearly parroting the propaganda of Gottlieb’s “vaping epidemic”, de Blasio’s endorsement is just a small part of the machinery behind this proposal.
Parents Against Vaping e-Cigarettes (PAVE) have been out in force to support this bill, as have other anti-vape activist groups. While Mark Levine, the bill’s lead sponsor, has made effort to assure people that the bill will only ban flavors “we know are hooking kids, no one is talking about a blanket ban on vaping”.
Ironically, that’s exactly what proponents of the bill are hoping for. Emboldened by San Francisco’s startling citywide ban on vaping, anti-vapers in New York are hoping that their city can be next, especially if they can start by banning flavors.
At a recent rally held by PAVE, pro-vaping protestors were also on hand. One group, Vaping Legion, took it upon themselves to shout down Meredith Berkman, co-founder of PAVE, when she began launching into an untruthful tirade related to the “vaping associated” hospitalizations recently. Vaping Legion was able to make themselves heard over the PAVE fanatics just long enough to cast the blame, appropriately, on unregulated THC cartridges, which all evidence conclusively points to as the culprit behind these incidents.
Ironically, another presence at this rally and throughout the fight against the flavor ban is Juul themselves. A Juul representative showed up after the press conference with PAVE to point media towards people they call “switchers”, smokers who successfully transitioned to Juuls.
This half-hearted attempt to side with vapers against powerful institutions, however, is far too little and far too late. It was Juul themselves who opened these floodgates when they refused to fight back against the FDA in order to save face. The company is so hellbent on appearing like the voice of reason in an industry filled with greedy, amoral vape shop owners that they may very well have shot themselves – and the entire industry – in the foot.
Real Men (And Juul)
Don’t Look At Explosions
And so, just like an action hero in a movie, Juul is attempting to casually walk away from the explosions they set off themselves. As any student of history knows, appeasement is not a viable strategy when dealing with rightwing fanaticism. And do not be mistaken by the letter “D” alongside anti-vaping senators and congresspeople’s names – the anti-vape lobby is in full support of authoritarian legislation with no regard for the wellbeing of American citizens or their rights. These laws will have a death toll, and the damage is already beginning.
As this legislation comes crashing down all around us, we have one place to point the blame: Juul Labs. Through their disingenuous marketing tactics, their revolting attempts to play both sides of the argument against each other, their unswerving dedication only to their own self-preservation, and their duplicitous double-talk, Juul Labs have allowed the wolves into the gates and are looking for a way out. If they escape the Armageddon they helped bring about, they won’t be taking any of use out the door with them.
If this new law passes in New York, it’s only a matter of time before the other major cities in America follow suit. From the moment Juul pulled their flavors from stores, the anti-vape lobby has only gained in strength, conviction, and numbers. It may be too late to stop them now, but at the very least, even the most casual vaper needs to throw their lot in with the VTA and Vapor Stockroom. This current lawsuit, along with the ballot measure in San Francisco to repeal the ban, are all that stands between our current vape industry and oblivion. I, for one, sure don’t want to go back to smoking, and I’ll do everything within my power to keep that possibility from becoming a reality.