On Tuesday, September 8th, Attorney General Brian Frosh signaled a massive win for public health advocates across Maryland, publicly unveiling a tentative agreement to join a multi-state settlement with JUUL Labs, a vape product manufacturer, worth over $438.5 million.
For years, public health advocates and legislators have sought to curb youth vaping, levying multiple tools to achieve this goal, including public awareness campaigns, new laws, and lawsuits. JUUL held, at one point in time, the greatest share of the vape market due, in part, to its youth-oriented marketing spanning social media posts to flavors known to be appealing to underage users. Attorney General Frosh noted the harm vape products have leveled on Maryland communities in a press release:
‘Marketing nicotine to children is flat out dangerous. It puts kids at risk for a lifetime of addiction,’ said Attorney General Frosh. ‘We hope that this settlement, once finalized, will stop JUUL’s harmful sales practices.’
According to the Attorney General, the $438.5 million would be paid out over five to nine years, with the amounts paid increasing the longer the company takes to make the payments. If JUUL chooses to extend the payment period up to nine years, the final settlement would reach over $476.6 million. Under the settlement, JUUL will refrain from
- Youth marketing;
- Operating or directly funding youth education programs;
- Depicting persons under age 35 in any marketing;
- Using cartoons in any marketing;
- Selling flavors not approved by the FDA;
- Comparing the amount of nicotine in its products with other e-cigarettes or cigarettes in its advertising unless authorized by FDA;
- Making statements about nicotine content in marketing materials without disclosing the
- specific nicotine content of the product, unless the FDA requires a different disclosure;
- Advertising on billboards;
- Using outdoor advertising near a school;
- Using paid influencers to promote on any social media platform; and
- Direct-to-consumer ads unless consumers are age-verified.
For six years, JUUL will also refrain from
- Paid product placement intended for the public and outside of adult-only facilities;
- Sale of brand name merchandise;
- Allowing access to websites without age verification on the landing page;
- Paid sponsorships for use of its brand name outside of adult-only facilities;
- Advertising in outlets unless at least 85 percent of the audience is adult;
- Public transportation advertising;
- Social media advertising (other than testimonials by individuals over the age of 35 on
- certain channels, with no unauthorized health claims); and
- Providing free samples.
YOUTH VAPING IN MARYLAND
In 2013, the Maryland Department of Health (MDH) first began administering the Maryland Youth Risk Behavior and Tobacco Survey, which surveys high school and middle school students on various risk-taking behaviors, including bullying, drug use, sexual behavior, and diet. In 2014, MDH began asking youth whether they “ever used electronic vapor products” and “currently used electronic vapor products.” In its 2014 assessment, 20% of those surveyed had used a vape product, whereas, in 2018, nearly double the number of survey participants answered in the affirmative – 39.7%. In addition, 23% of 2018 participants reported vaping within the previous 30 days leading to the survey.
FEDERAL, STATE, AND LOCAL EFFORTS TO CURB YOUTH VAPING
The significant jump in youth vaping numbers in Maryland roughly coincided with the emergence of JUUL, first introduced in 2015, and other vape manufacturers whose products included previously unreported, yet significant quantities of nicotine. Earlier this year, the U.S. Food and Drug Administration halted the sale of all JUUL products citing a lack of “sufficient evidence regarding [their] toxicological profile.” In 2020, the FDA significantly limited the sales of flavored vape products, attempting to balance “the public health concerns related to youth use of ENDS products with considerations regarding addicted adult cigarette smokers who may try to use ENDS products to transition away from combustible tobacco products.”
Taking notice of vaping’s popularity among Maryland’s youth, state and local legislators pursued and instituted new laws and policies to address previous federal inaction. At the state level, in 2017, the Maryland General Assembly modernized its definition of “electronic smoking devices” (ENDS) to reflect the products making their way into the marketplace – expanding the definition to include an ENDS “component, part, or accessory.” Through that same reform, ENDS retailers were required to receive state licensure. Moreover, in 2019, as a part of Maryland’s Tobacco 21 initiative, the legislature raised the minimum vape product sales age from 18 to 21. In recent years, additional measures to limit vape flavors and youth marketing have been considered.
At the county level, Montgomery has been especially active in regulating vape products. In 2020, the County passed a flavor ban, which prohibits the distribution of flavored vape products within a half mile of schools and other areas frequented by youth. Montgomery also imposes an excise tax on dealers and distributors of vape products. In 2018, Baltimore City proposed a law that “would expand the definition of smoking devices and ban flavored vaping liquids.” Moreover, Anne Arundel, Baltimore, Frederick, Garrett, Howard, and Montgomery Counties filed lawsuits against JUUL, significantly bolstering the state’s case against the preeminent vape manufacturer.
Considering the many efforts of Maryland and its counties to curb youth vaping, the JUUL settlement represents a significant public health victory.