On Tuesday, e-cigarette maker Juul announced an aggressive-sounding plan to prevent kids from using its nicotine products, including stopping the sale of most flavored pods in more than 90,000 US retail stores and shutting some of its social media accounts. The plan was a response to warnings from the Food and Drug Administration, which is expected to announce restrictions on the sale of flavored e-cigarettes as soon as this week.
FDA Commissioner Scott Gottlieb acknowledged Juul’s efforts, but said self-regulation was not enough. “We’re deeply concerned about the epidemic of youth use of e-cigs. Voluntary action is no substitute for regulatory steps #FDA will soon take,” Gottlieb tweeted after Juul publicized its plan. “But we want to recognize actions by JUUL today and urge all manufacturers to immediately implement steps to start reversing these trends.”
Both public health advocates and vaping industry insiders were also dubious about Juul’s plan, which they see as an effort to forestall regulation that won’t dent Juul’s popularity. Some of the fixes proposed by Juul could even protect its bottom line.
For instance, Juul said it had stopped accepting retail orders on flavors like mango, fruit, creme, and cucumber, which represent an estimated 55 percent of its sales. But it will continue to sell menthol, tobacco, and mint pods, and earlier reports say mint is one of its most popular flavors. What’s more, even the fruity flavors may be back on shelves. Retail stores that comply with a set of restrictions, developed by Juul, for sales to those 21 and older can start selling the flavors again, the company said.
Juul declined to respond to questions from WIRED about the popularity of its mint pods, what stores are not included in the 90,000 retail locations, what percentage of Juul’s sales come from retail stores, or what percentage comes from the US.
Juul’s proposed social media changes aren’t as restrictive as they sound either. As part of the plan, Juul is shutting its US-based Facebook and Instagram accounts. This approach is at odds with one of Juul’s main talking points: The company has always maintained that its popularity on social media is organic, derived from others and not the company itself; a recent study supports the company’s view.
“Even if Juul pulls back, young customers will keep doing the marketing for them through their own posts on Instagram, YouTube, and other social media,” says Vince Willmore, a spokesperson for the Campaign for Tobacco-Free Kids.
Juul dominates the e-cigarette market, capturing nearly 70 percent of retail sales, according to data released by Nielsen this summer. The brand grew in part because of popularity with young people, who were drawn to Juul’s sweet flavors, its presence on social media, and its discreet device, which is shaped like a flash drive. Data from the FDA, which prompted increased scrutiny from Gottlieb, shows that in the past year, the number of kids who vaped grew 75 percent, with more than 2 million middle- and high-school students using e-cigs in 2017. The company has been lobbying heavily and faces a barrage of lawsuits about addicting users to nicotine.
Juul’s youth-prevention plan will cut into its revenues, but it’s not clear by how much. Juul was reportedly in the midst of raising $1.5 billion in a funding round that would have valued the company at $15 billion, but had raised only $650 million towards its goal. The US is by far the biggest market for e-cigarettes, but Juul is already being sold in Israel, and lists job openings in the UK, China, and Canada.
Greg Conley, president of an advocacy group called the American Vaping Association, called Juul’s decision to pull back from social media “goofy.” He said Juul had already “made their social media so milquetoast over the past eight months,” by focusing on success stories from adult smokers in their 30’s and 40’s who switched to Juul.
Juul said it has asked for help from Facebook, Instagram, Twitter, and Snapchat to police “unauthorized, youth-oriented,” content. But considering the tech industry’s track record on policing opioid sales, asking for help from already strained content moderation departments is no guarantee.
Marc Scheineson, a former FDA associate commissioner and partner at the law firm Alston & Bird, compared it to the moral panic that followed the drink Four Loko, a viral sensation with teens that combined caffeine and alcohol. The agency moved to restrict sales of Four Loko in 2010 because of the attention around it, but it didn’t touch Red Bull, which was used in bars and clubs for the same purpose and just as much of a health concern.
Still, Scheineson says the agency may agree to voluntary concessions from Juul because the FDA’s authority in this arena is unclear and the agency could not limit the sale of flavored e-cigs without promulgating new regulations. Scheineson questioned whether restricting social media usage was even legal. “If its a lawfully marketed product, sold in a truthful and not misleading way, companies have commercial free speech rights,” he said.
Some of the more high-tech solutions mentioned in Juul’s action plan, such as a Bluetooth-connected device that would shut down as a way to restrict under age users, may even be a strategic play, says Conley. Juul knows that it cannot introduce a new type of device into the market until it goes through the difficult process of obtaining a pre-market approval. So in a meeting with the FDA, Juul would might be able to say it was following the rules and coming to the agency with an innovative solution, to encourage Gottlieb to approve the application.