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Juul CEO says “Don’t vape. Don’t use Juul.”

If you were surprised to hear that Juul’s CEO, Kevin Burns, publicly told people not to vape or use his products, you were not alone. It is quite rare for a company to recommend against supporting its profit margins. This is especially true for a company that has been under intense scrutiny for predatory marketing practices and a link to the meteoric rise of teen e-cigarette use. It begs the question, “Why?” Why is Juul so suddenly changing its spots? Could Juul truly and authentically have morphed into an ambassador of health and wellness?

First, let’s keep Burn’s comment in its contextual bin, where it belongs. Burns is limiting the coverage to those who do not use nicotine at all. His statements, as quoted in a CBS interview, were:

“Don’t start using nicotine if you don’t have a preexisting relationship with nicotine.”
“Don’t use the product.”
“Don’t vape. Don’t use Juul.”

At first glance, these comments might make you might think Burns has had a crisis of conscience. But no, Burns wants everyone who already uses nicotine to vape and to use Juul—including all the newly-addicted teens. This is all part of Juul’s strategic ploy to shift focus away from their teen users, and redirect it toward their unproven claim that Juul helps adult cigarette smokers to quit their inhalation and nicotine addictions.

Juul’s drive to reposition the vape product as a “healthy” alternative to cigarette smoking is just as intense and pervasive as their drive to capture young vapers back in the early launch days. In 2015, 2016, 2017, and 2018, Juul used parties and giveaways, cool advertisements, and candy-flavored liquids to attract users (many of them teens). In these more modern times, i.e., post FDA scrutiny, post lawsuit filing, and post deadly vaping illnesses, they are apparently taking a more mature approach by creating a “smoking cessation app” that will turn smokers into “Juulers.” In keeping with that illusion, they also make public declarations that Juul is some type of “health product.”

On August 19, 2019, Burns further solidified this claim when he penned an Op-Ed denying a Juul connection to teen vapers and pushing the 2019, health-focused, positioning statement. He said, “We do not want or need non-nicotine users. Our market is the over 1 billion adult smokers worldwide who should have the opportunity to switch to vapor products if they so desire. We are seeing tremendous success so far.”

Yes, indeed, they are seeing success. People are switching over, but there’s no proof they are quitting the nicotine addiction. The following tricky-dicky paragraph suggests it, but the statement is misleading:

“We have seen that nearly half of adult smokers who purchase and use JUUL products switch completely from smoking cigarettes within three months, with the rate of complete cigarette abstinence increasing over time.”

That paragraph could easily be misconstrued to mean people are quitting cigarettes for good, including e-cigarettes. But that is not what it says. The paragraph states that cigarette users are switching addiction delivery devices, not that they have quit nicotine, nor that they have made a safer choice.

Instead, new users are inhaling unknown chemicals into their lungs, and those chemicals are entering the bloodstream and cells in the same way as combustible smoke. Each one of Juul’s high-level nicotine liquid pods carries nicotine equal to five packs of cigarettes—that could actually increase the addiction if they excessively inhale the Juul vapor. Plus, given the recent reports that vaping has caused seizures, as well as numerous rapid onset lung and health related illnesses, that switch could be unexpectedly, and immediately, life-threatening.

Juul, which has heavy investment from the tobacco industry, is in the business to make money, not to protect consumer health. Like its investor, Altria, Juul knows that the more users they have the more money they make. That is Juul’s goal, not health care. Again, I point you back to Juul’s bane-of-existence Verge article from 2015 that implies Juul was not designed for health purposes. R&D Engineer (Atkins) was quoted saying, “We don’t think a lot about addiction here because we’re not trying to design a cessation product at all,” he said, “anything about health is not on our mind.”

The Bottom Line

If, in its attempt to sidestep its liability for teen-focused customer acquisition, Juul wants to profess that it is a health product that will save cigarette smokers from their nicotine addiction and other health risks; then, Juul should:

  • immediately be estopped from selling an unapproved medical device on the market;

  • file its 510(K), or PMA for FDA approval of its medical device;

  • definitively prove the device is consumer-safe for that purpose as per the FDA requirements; and,

  • Kick back until it gets FDA approval to market and sell it as a medical device.

One wonders if Juul realizes that positioning its e-cigarette as a “medical product” may put it in a class unexpected. If for some reason that happens, Juul could become subject to far stricter compliance rules than were likely under tobacco regulation.

However, whether or not the deflection strategy backfires into stricter regulation, Juul’s liability doesn’t go away just because they change their practice or their marketing collateral. If Juul did it, it is liable, and it will be required to make reparations to the injured parties.

COPYRIGHT © 2021, STARK & STARKNational Law Review, Volume IX, Number 275
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About this Author

Domenic B. Sanginiti, Jr, Stark Law, Personal Injury Lawyer, Civil Litigation Attorney
Shareholder

Domenic B. Sanginiti, Jr. is a Shareholder and member of the Accident & Personal Injury Group. Mr. Sanginiti concentrates on catastrophic personal injury matters, negligent security claims, wrongful death and product liability matters. Mr. Sanginiti also focuses his practice on the hazards and defects of lithium ion batteries, e-cigarettes, and other vaping products. Mr. Sanginiti is currently leading the Juul litigation at Stark & Stark and...

609-895-7399
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