JUUL Opposes Industry Lawsuit Against FDA, Quits VTA

JUUL Labs is quitting the Vapor Technology Association (VTA), after a year of major financial contributions to the vape industry trade group. JUUL cited strategic conflicts with VTA, including JUUL’s support for Tobacco 21 legislation and banning some e-liquid flavors, which the VTA opposes.

The e-cigarette company announced Tuesday that it will not renew its VTA membership when it expires later this month. The company reportedly posted the statement, titled “Our Commitment to the PMTA Process,” on its website without first warning VTA leadership of its decision.

JUUL objects to having any association with VTA’s recent lawsuit against the FDA that challenges the agency’s new May 2020 deadline for submission of premarket tobacco applications (PMTAs) by vape manufacturers. JUUL remains convinced that it can submit a successful PMTA by next year, and it would prefer to avoid headlines like “Vaping Companies, Including Juul, Sue FDA To Delay E-Cigarette Review.”

“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,” said the JUUL statement. “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.”

Of course, unlike every other company in the independent vaping industry, JUUL has the resources to play the PMTA game. It will probably require millions of dollars (for each individual product) to do the research and testing necessary to submit an application that has a chance at FDA approval. JUUL, with its soaring convenience store sales and $12.8 billion investment from Marlboro manufacturer Altria, has the cash, facilities and staff to complete as many applications as it wants to.

But submitting an application doesn’t mean approval. Former FDA Commissioner Scott Gottlieb, for example, is not so sure JUUL will be successful with a PMTA. The company that inspired Gottlieb’s teen vaping “epidemic” will still have to deal with the firestorm of controversy that follows it at every turn, and that may make the FDA gun shy about approving its products. “[Unfortunately] 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 [in a PMTA] for a JUUL like product,” wrote Gottlieb in a tweet.

It is an ironic and comic twist that JUUL—after being the target of almost two years of relentlessly bad press—is afraid that the rest of the vaping industry will create public relations problems that might damage its chances at FDA approval. JUUL acts as though it has a reputation to protect, when it may well be the single most hated company in the country from any industry—despite being in a crowded space of pod vape companies that sell pre-filled nicotine salt devices designed to help smokers quit.

As always, JUUL won’t fight back against its critics, but will stay quiet and even make concessions to the anti-vaping activists calling for its head. It is those concessions that have made JUUL a name spoken with venom by most of the small business owners in the vaping industry. JUUL’s exit from VTA is only the formal divorce after what was always a rocky marriage.

JUUL’s support for Tobacco 21 has always been unpopular among the VTA rank and file, but its willingness to indulge the tobacco control hardliners who demand flavor bans and restrictions has led industry insiders to question whether there is anything JUUL is willing to fight for. JUUL, after all, removed its flavors from store shelves voluntarily, before the FDA announced it would force them to.

“While we have appreciated the opportunity to collaborate with the VTA, we will not renew our membership when it expires later this month as we are not aligned on too many critical policy issues,” said the company’s statement yesterday. “For example, we support clean Tobacco 21 legislation and an outright ban on certain flavors.”

Vaping360 asked JUUL Labs which flavors the company supports banning. We were told by a JUUL spokesperson to refer to this paragraph from a recent Washington Post op-ed by JUUL CEO Kevin Burns:

“We support the FDA’s draft guidance restricting the sale of certain flavored products, including Juul pods, at retail outlets and online,” wrote Burns. “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.”

The statement could be read as opposition to supposedly “kid-appealing” packaging, rather than the actual flavors. But JUUL has made similar statements before, listing specific names of e-liquid flavors it finds objectionable. The joke, of course, is that probably no e-liquid flavors ever produced by any company have been more popular with actual teenagers than JUUL’s flavors.

JUUL Labs is well aware that the majority of businesses in the independent vaping industry in the United States, including almost all of VTA’s members, depend on e-liquid flavors. That is the product that drives sales and profits, and it is the wide variety—yes, including candy flavors—that keeps many adult vapers coming back to vape shops instead of buying cigarettes. It really shouldn't matter what flavor an adult has in their vape pen. But while JUUL’s willingness to go along with the “flavors hook kids” narrative looks like the rich pod vape manufacturer throwing the little guys under the bus, it’s really just another example of the company’s determined self-delusion.

JUUL will not get credit from the Campaign for Tobacco-Free Kids for its stand against other companies’ flavors. The tobacco controllers who want JUUL put out of business don’t separate “good” vape flavors from “bad” vape flavors. They hate all vape flavors, and they hate JUUL’s flavors the most because they hate JUUL the most. JUUL is a perfect dartboard for tobacco control hatred, a passive target that even apologizes for offending its enemies.

The small business owners that started the vaping industry and have been fighting to keep it alive for more than 10 years were always suspicious of the San Francisco vape company that arrived in 2015, and presented itself as a cool Silicon Valley tech startup. Now, after two years of suffering for every dumb mistake JUUL has made, they view the hipstery vape moguls with outright contempt.

JUUL will carry on with its strategy of passivity and compliance, gratefully accepting every criticism—even outrageously unjust criticism—from politicians and anti-vaping activists, and praying that the FDA regulators that hold its future in their hands won’t notice. It will continue to trip over its own ignorance of the history of tobacco and tobacco control, and even if it fails with its PMTA it will muddle along selling in other countries until opinions shift.

But the small businesses the VTA represents can’t afford to submit PMTAs, and they can’t afford to wait out the vaping moral panic raging across the country. They don’t have billions in the bank, and their employees didn’t get seven-figure bonuses last year. Their only choice is to sue the FDA and hope for a miracle. JUUL doesn’t want to be seen as being part of that.

Statement from the Vapor Technology Association