Juul Announces Preemptive Restrictions on Its E-Cigarette Flavors

The company's plan to prevent underage vaping, which includes limits on constitutionally protected speech, goes beyond what the FDA is expected to require.


Juul Labs

Today the company that makes Juul e-cigarettes announced a "Youth Prevention Action Plan" that includes withdrawing most of its flavors from brick-and-mortar stores in response to the Food and Drug Administration's demands that it do something about underage vaping. The concession illustrates the FDA's power to impose restrictions on e-cigarette manufacturers and limit consumer choice even without bothering to issue formal regulations.

"We launched flavors like Mango, Fruit, Creme, and Cucumber as effective tools to help adult smokers switch from combustible cigarettes," Juul Labs says. "However, we are sensitive to the concern articulated by [FDA] Commissioner [Scott] Gottlieb that '[f]lavors play an important role in driving the youth appeal,' and understand that products that appeal to adults also may appeal to youth. As of this morning, we stopped accepting retail orders for our Mango, Fruit, Creme, and Cucumber JUUL pods [from] the over 90,000 retail stores that sell our product, including traditional tobacco retailers (e.g., convenience stores) and specialty vape shops."

That move goes beyond the restrictions that the FDA is expected to announce this week, which ban e-cigarette flavors except for tobacco, menthol, and mint from stores that admit minors but allow their sale by tobacconists and vape shops. Altria, which makes MarkTen e-cigarettes, has already said it will stop selling pods in flavors other than tobacco, menthol, and mint anywhere until the FDA approves them. The two companies together account for nearly four-fifths of the U.S. e-cigarette market.

It is still not clear what form the FDA's new rule will take. The National Association of Convenience Stores notes that the Family Smoking Prevention and Tobacco Control Act, the 2009 law that gave the FDA authority over tobacco products, says the agency may not "prohibit the sale of any tobacco product in face-to-face transactions by a specific category of retail outlets." But since the FDA has threatened to move up the deadline for approval of e-cigarettes or take flavored varieties off the market altogether, it has a lot of leverage to demand changes short of those actions. As Gottlieb noted in an interview with Politico last week, "This is an existential threat for them."

In addition to removing most of its flavors from offline vendors, Juul says it is "adding additional age-verification measures to an already industry-leading online sales system that is restricted to people 21 years old" or older; limiting customers to "two devices and fifteen JUUL pod packages per month, and no more than ten devices per year" in an effort to prevent bulk purchases of e-cigarettes that may be diverted to minors; and "attacking the presence of JUUL Labs on social media in two ways—eliminating our own social media accounts and continuing to monitor and remove inappropriate material from third-party accounts." That last item suggests the FDA can indirectly censor constitutionally protected speech by holding the threat of ruinous regulatory action over the heads of e-cigarette companies.

Juul evidently has calculated that it will do better in the long run by heading off more drastic measures aimed at fighting what the FDA, based on data the public still has not seen, describes as an "epidemic" of underage vaping. But the immediate effect will be to limit the options available to smokers who might be interested in switching to e-cigarettes, making these harm-reducing products less accessible and less appealing, which may lead to more smoking-related deaths than would otherwise occur.

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  1. Isn’t the FDA planning to ban menthol too now? This seems ridiculous, but then again so do most regulatory actions. Something must be in it for Juul in order for them to be playing along like this.

    1. I did my due freakout about menthol yesterday. But on the bright side the only analyst I saw quoted was quite confident to buy the dip that tobacco stocks took yesterday, because in her words it was extremely unlikely that the ban would ever actually come to pass. I am no fan of Big Tobacco but I do hope their lawyers manage to kill this like they killed enhanced warning labels. Don’t know what case they might make but they do have a few more friendly judges in place now compared to then. I figure they would not have supported giving the FDA critters jurisdiction in 2009 so fervently if they didn’t figure it would be a windfall for them. So far it’s worked great for them.

      1. The graphic warning labels were a free speech issue. Even some progs agreed that if they required these labels on cigarettes, nothing would stop a conservative administration from requiring posters of aborted fetuses be displayed at abortion clinics. The 2009 act gave the FDA broad jurisdiction to regulating the content of tobacco products and flavors, but specifically exempted menthol, so there may be a court challenge. The thing is that menthol cigarettes are not actually more dangerous than regular ones-some evidence suggests they might actually be less so, but if they can show teens prefer a certain product, then the FDA can ban it. Doesn’t apply to alcohol though, go figure.

  2. limiting customers to “two devices and fifteen JUUL pod packages per month, and no more than ten devices per year”

    This sounds a lot like something gun control freaks would try. But alas, there is no constitutional amendment protecting the right to vape (or smoke).

  3. I hope this won’t lead to banning Juuls and other e-cigarettes. If people can’t vape, the rest of us won’t be able to tell who’s a douche or not.

  4. The FDA are a vile group of unaccountable bureaucrats. Thanks for shaving years off of our lives, assholes. (Not that vaping helps or hurts my life expectancy, just saying that the FDA, in general, is responsible for reducing life expectancy.)

  5. in an effort to prevent bulk purchases of e-cigarettes that may be diverted to minors

    Is this a thing? Are there people with cartons of cigarettes out there looking to unload them on some hapless kids who can’t buy them because they’re underage? Seems like a solution to a problem that wasn’t even invented.

    1. You didn’t know anyone like that in high school?

  6. How are federal vaping regulations going to affect the possibility of vaping marijuana in states where it’s legal? Could this be the issue that finally gets the Supreme Court to overturn Wickard v. Filburn?

    1. Herr Gottlieb has at least for now exercised enough restraint that he is targeting exclusively the cartridge ecigs, because those are the ones that teens like. Not the open-tank systems that real vapeheads use.

      1. The tank-type Kanger EVOD Ego-compatible system is favorably reviewed on Kevin Kelly’s Cool Tools site: https://kk.org/cooltools/

        Once you’ve got that in your URL box, append the suffix kanger-evod-electronic-cigarette/

        This site’s 50-character limit wouldn’t let me post a deep link.

  7. After you’ve been robbed at gunpoint by the thug that lives on your block a few times, he doesn’t have to show you the gun to let you know he means business. So see, it’s a totally voluntary act of charity when you hand him your wallet without being told.

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