By Eric Wilkins.
E-cigarettes, or “vapes,” have been climbing in popularity since they first arrived in American markets in 2007. Originally, vaping was proposed as a “healthier” alternative to smoking traditional cigarettes. In recent years, marketing strategies of e-cigarette vendors have, seemingly, increasingly targeted minors with unfortunate success. The recent explosion in their popularity—coupled with the rise in associated health complications—has received enough attention to result in a string of lawsuits and discussion by policymakers.
E-cigarettes: A Litigious History
Notwithstanding their relatively recent introduction to the market, the story of legal battles within the e-cigarette industry is convoluted. As just one example, Juul Labs, Inc.—a ubiquitous industry giant whose name has become nearly synonymous with vaping itself—is currently facing more than seven hundred lawsuits from numerous states (including Arizona), cities, school districts, and citizens from across the country. These lawsuits offer a wide variety of legal claims, which fall primarily into three categories:
- Juul intentionally advertised its product to attract minors,
- Juul’s marketing failed to warn that its products were as addictive as tobacco-based nicotine products, and
- Juul’s products are unreasonably dangerous.
Prevalence Among Youth
Vaping prevalence among young people has grown substantially in the past three years, and Arizona is certainly no exception. Despite Juul’s claims that they do not market to underage consumers or want them to try their products, a 2019 survey suggests almost half of Arizona students tried a vape product by the time they reached 12th grade. Additionally, a 2017 study found that among Arizona high school students, e-cigarette use was more than double the rate of traditional cigarettes (despite the fact that the rate of e-cigarette use for adults was only one-third the rate of traditional cigarettes). Nationally, data shows that nearly 12% of high school seniors use vape products daily.
Juul’s advertisements—which use bold colors, stylish models, Instagram influencers, and themes of attractiveness, rebelliousness, and independence—seem to support a narrative of marketing to underage consumers despite Juul’s denials. The alarming prevalence of vape use in schools does little to dissipate the allegations of sinister motives. Moreover, the products come in a variety of sweet and fruity flavors that appeal to younger audiences; when polled, many students reported that the flavors were the reason they tried e-cigarettes. Perhaps most telling of all is the allegation that Juul purchased advertising space on the websites of Nickelodeon and Cartoon Network.
As a nicotine product, the health risks associated with e-cigarettes are certainly not surprising. However, Juul’s promotion of vaping as a product to help smokers quit cigarettes is, arguably, misleading. While studies have shown vaping is overall more effective at curbing nicotine addiction than a placebo, the FDA has not approved it as a smoking cessation product, and its joint research into e-cigarettes with the CDC and numerous state and local departments is ongoing. Worse still, many smokers who resort to vaping in an effort to quit end up addicted to both cigarettes and vaping, a practice often referred to as “dual use.”
Meanwhile, the CDC’s investigation into “e-cigarette, or vaping, product use-associated lung injury” (EVALI) is ongoing. While study of EVALI has been sparse since the arrival of the COVID-19 pandemic to the United States, data from February 2020 reports more than 2,800 hospitalization cases since the first diagnosis in August 2019, with nearly 70 deaths resulting from damage to the lungs.
Vaping and COVID-19
The onset of the COVID-19 pandemic has, understandably, shifted public attention away from the health risks of vaping. And, to be sure, surveys taken in 2020 indicate a slight reduction in e-cigarette use among students. Ostensibly, if minors are staying at home rather than going to school, they have fewer opportunities to acquire and use vape products.
However, students who do vape may be at a heightened risk of exposure to COVID-19. According to one source, young Arizonans who vape may be up to five times as likely to contract the virus as those who do not. Worse, the damage to the lungs associated with smoking and vaping provide the recipe for a cocktail of respiratory complications in COVID-infected individuals.
Proposition 207: Helpful or Harmful?
In the recent 2020 election, Arizonans voted to pass Proposition 207, legalizing recreational marijuana for individuals of 21 years and older. While restrictions will still apply insofar as what products will be available and who may sell them, THC vapes will be among the list of permissible products, adding a new dimension to the e-cigarette analysis in Arizona. Whether this change presents a positive or negative development in the arena of vaping among minors remains to be seen.
On the one hand, the legalization of marijuana may increase access to THC vape products for minors. Even assuming vendors will not sell to minors directly (which is, perhaps, a risky assumption), a greater supply of these products in circulation will necessarily increase opportunities for minors to acquire them illicitly. Unscrupulous or careless parents may (incorrectly) see the relaxed legal restrictions as an admission that vaping is not harmful. Furthermore, vape-based THC is often more potent than it is when dried and smoked, and considering minors’ proclivity toward vaping over smoking, this may prove damaging should the products fall into the wrong hands. Finally, the sudden legalization may create a spike in interest in vaping generally. This increased demand will serve as an invitation for e-cigarette vendors to market more aggressively—exacerbating one of the very problems that litigation is seeking to diminish.
Nevertheless, proponents of legalization speculate that this change will be good for all. For one thing, permitting the sale of marijuana through appropriate channels will bolster the legitimate market, driving away the demand for environmentally-damaging and potentially dangerous black market THC. If marijuana is sold by licensed vendors, these sales will be ID verified at a higher rate than sales made by drug dealers, reducing the risk of sales to minors. Secondly, legalization allows for regulatory scrutiny. Part of the problem with the recent increase in vaping is that it is just too new, such that medical experts and government agencies simply don’t have enough information to enact good policies. In a sense, legalizing marijuana—and keeping a close eye on the products that are sold—may be the only way to get enough data to protect those who will, regardless of the law, use these products. In fact, some argue that Proposition 207 does not go far enough; the next step is to acquire federal legalization so these products may be examined by the FDA. Thus, legalizing marijuana may be a concession to the reality that e-cigarette use among minors will continue, while taking steps to ensure that the damage this causes is reduced.
One thing is for sure: this problem is not going anywhere soon. As nicotine is most strongly addictive during adolescence (9 out of 10 lifetime smokers report starting before the age of 18), even if we find a way now to restrict minors’ access to e-cigarettes, we’ve likely already cultivated a generation who will suffer the effects of a lifetime addiction. Moving forward, we can only hope that we remember this lesson and take reasonable caution to shield children from unscrupulous marketing.