State of California Sues E-Cigarette Company JUUL Labs, Trump Administration in Flux Over Proposed Ban of Flavored E-Cigarettes

Two notable actions related to electronic cigarettes occurred this week, both on the state and federal levels. We detail these actions below:

AG Becerra Alleges JUUL Labs Unlawfully Targeted Minors

On Monday, California Attorney General Xavier Becerra announced the State of California has filed a lawsuit in the Alameda County Superior Court against JUUL Labs, claiming JUUL is responsible for creating “a public health epidemic.” The state is joined in the lawsuit by Los Angeles County which contends JUUL Labs delivered its electronic cigarette products to underaged individuals, delivered products without verifying customers’ ages, and violated minors’ privacy rights by emailing underaged individuals with marketing materials despite them failing age verification measures on JUUL’s website. Additionally, the lawsuit alleges JUUL failed to warn consumers of its products’ chemical exposure and risks for cancer, birth defects, and reproductive harm.

The lawsuit seeks to require JUUL Labs to pay $2,500 for each violation of the California Business and Professions Code and the Stop Tobacco Access to Kids Enforcement (STAKE) Act. The California Attorney General’s Office has conducted a 21-month investigation into JUUL and its marketing and sales practices, leading to Monday’s lawsuit filing. In a press conference announcing the legal action on Monday, Becerra cited a series of recent statistics from the U.S. Centers for Disease Control and Prevention (CDC) and the U.S. Food and Drug Administration (FDA) indicating a dramatic increase in electronic cigarette products, particularly among youth and young adults. Becerra claimed, “We’ve worked too hard, committed our hard-earned money for too long combatting harmful tobacco use to stand idly by as we now lose Californians to vaping and nicotine addiction. JUUL adopted the tobacco industry’s infamous playbook, employing advertisements that had no regard for public health and searching out vulnerable targets. … We will hold JUUL and any other company that fuels a public health crisis accountable.”

JUUL Labs released a statement in response to the State of California’s lawsuit indicating that they “remain focused on resetting the vapor category in the U.S. and earning the trust of society by working cooperatively with attorneys general, regulators, public health officials, and other stakeholders to combat underage use and cover adult smokers from combustible cigarettes.” JUUL further pointed to its recent decision to stop accepting order for mint flavored electronic cigarette device pods, cease all broadcast, print, and digital product advertising in the U.S. and invest in further research to ensure the quality of its FDA Premarket Tobacco Product Application.

A press statement from the Office of the Attorney General is available here. The full legal complaint against JUUL Labs is available here.

Future Unclear for Previously Proposed Flavored E-Cigarette Ban

Recall, in early September, President Donald Trump announced that his Administration would pursue a comprehensive plan by the U.S. Food and Drug Administration (FDA) for removing flavored electronic cigarettes and nicotine pods from the market, including mint and menthol flavors. The move was widely applauded by public health, health care, and children’s advocacy organizations, and the plan was to be revealed in several weeks. However, the timeline stretched into months until the FDA submitted its proposal to the White House Office of Management and Budget (OMB) for review on November 4. Reports then indicate all movement on the comprehensive plan were halted on November 5, largely as a result of industry opposition and political calculations.

President Trump’s advisers and tobacco industry representatives were reported to have swayed Trump by casting doubt onto the effectiveness of a market ban on the products, as well as suggesting that the move would lose supporters and result in economic and job losses. President Trump called off a rollout of the Administration’s proposal that was scheduled for earlier this month, including a news conference that U.S. Department of Health and Human Services (DHHS) Secretary Alex Azar planned to hold.

Instead, President Trump on November 11 tweeted that he would be meeting with vaping industry representatives, medical professionals, and individual state representatives “to come up with an acceptable solution to the Vaping and E-cigarette dilemma.” He further indicated that “Children’s health & safety, together with jobs” would be a focus of the meeting. While the announcement from President Trump reportedly took advisers by surprise, that meeting, characterized as a “listening session” took place today with representatives from medical and public health organizations, parents’ advocacy groups, and the vaping and tobacco industry, among other stakeholders.

At the conclusion of today’s meeting, President Trump appeared to suggest that his Administration would seek a minimum age requirement of 21 years old to purchase any electronic cigarette products, though concrete next steps remained unclear. Meanwhile, a number of states and localities have instead begun to implement their own actions and regulations on electronic cigarette products amid the nationwide outbreak of vaping-related illnesses and injuries.