That’s the phrase Oregon Attorney General Ellen Rosenblum uses to explain Oregon’s recent surge of unrestricted teen e-cigarette use.
In legal terms, “attractive nuisance” is the concept that a property owner can be held responsible for injuries sustained by a child trespassing on their property, if the owner has an item on their property that’s likely to attract children, like a trampoline or a swimming pool.
Or, Rosenblum argues, if they’re selling candy-flavored e-cigarettes.
Rosenblum is currently leading an Oregon Department of Justice (DOJ) investigation into the teen-targeted advertising practices of Juul, the country’s top purveyor of flavored e-cigarettes.
“It’s pretty clear Juul is the big elephant in the room when it comes to e-cigarettes and marketing to kids,” says Rosenblum. “It’s hard to believe they weren’t aware their advertising at least appeared to be targeted to young people, and that it was quite successful.”
Twenty-three percent of 11th graders in Oregon, most of them 16 or 17 years old, reported using e-cigarettes in 2019—up a full 10 percent since 2017. And Juul—with about 75 percent of the market share, fruity flavors, youthful ad campaigns, sleek design, and enmeshment in online culture—is easily the go-to brand for most teenagers. But Juul’s future is in jeopardy following a wave of vaping-related lung illnesses and deaths. With symptoms similar to pneumonia, the illness, which has sickened 1,500 and killed 33, appears to be caused by toxic chemical exposure in the lungs. These deaths and illnesses have been linked to both cannabis-infused vape products and tobacco e-cigarettes. Two of the deceased were Oregonians.
At both the federal and state level, the vaping-related illnesses have sharpened the focus on teen e-cigarette use and Juul’s advertising practices. But for Rosenblum, the story of Juul’s success is also a story of years of government failure to regulate the burgeoning e-cigarette industry.
“I was hopeful that between the FDA and the Oregon Legislature and the Oregon Health Authority, that it wouldn’t get to this point,” says Rosenblum in an interview with the Mercury. “[Oregon teens] are addicted to nicotine—so what happens now?”
“Both the Obama administration and the Trump administration put support for the tobacco industry over the lives of our children."
The federal Food Drug and Administration (FDA) has been tasked with regulating tobacco products since 2009, the same year e-cigarettes hit the market. US Senator Jeff Merkley, an Oregon Democrat who has fought the tobacco industry since joining the Senate in 2009, says it was “immediately clear” to him that flavored e-cigarettes were meant to entice children. But the FDA and the Obama administration dragged their feet on developing rules for e-cigarettes, creating a regulatory void for the burgeoning industry. A recent New York Times investigation found that cozy relationships between government officials and tobacco-industry lobbyists may have contributed to the delay in regulation.
“Both the Obama administration and the Trump administration put support for the tobacco industry over the lives of our children,” Merkley tells the Mercury. “No part of our government looks good on this one.”
Several municipalities and states, including Oregon, have instituted temporary bans on selling flavored vaping products since the reports of people dying from vaping-related lung illnesses spread. Vaping companies have already begun challenging these bans in court. On Friday, October 18, a petition from several Oregon e-cigarette retailers prompted the Oregon Appeals Court to temporarily suspend the state’s ban. But regardless of if these challenges are upheld, the major health and safety risks of vaping are now public knowledge.
Recent state and federal actions on e-cigarettes are a rushed stopgap measure taken in response to the recent spate of illnesses. But the fact that e-cigarette companies have successfully introduced a new generation of Americans to nicotine has been known by state and federal authorities for about a decade.
Since 1998’s massive settlement agreement between 46 state attorneys general and the country’s largest tobacco companies, cigarette manufacturers have been required to abide by strict advertising restrictions meant to limit their potential appeal to children. Kid-friendly tactics, such as using cartoon mascots like Joe Camel to sell cigarettes, were outlawed.
These same regulations are meant to apply to e-cigarettes. But according to Rosenblum, the federal government has failed to ensure e-cigarette companies like Juul are playing by the rules.
“[It was] a 10-year period here without regulation,” she says. “We’re talking about 2009 to 2019, when basically nothing has happened to regulate the usage of these addictive devices, and where these companies have been allowed to run rampant in marketing and advertising to children.”
To Robert Jackler, a Stanford researcher who studies advertising in the tobacco industry, it’s clear Juul and other flavored e-cigarette companies were advertising their products to teens. Jackler’s 2018 study on Juul’s marketing strategies shows the company relied on classic cigarette industry strategies to hook young consumers, like associating their products with socializing, relaxing, and romance. Juul modernized this old-school strategy by distributing their ads across social media and creating a product that mimics the technology Generation Z has grown up using.
One of Juul’s architects used to design products for Apple, nudging some media reports to call the company’s product the “iPhone of e-cigarettes.” Juul devices and flavor pods carry the hallmarks of an Apple product: They’re minimally packaged, pleasingly sleek, and instantly intuitive. Like any well-designed piece of personal technology, a Juul evokes an immediate, involuntary desire to use it as soon as it’s in a consumer’s hands. Coupled with a sophisticated advertising strategy that included social media influencers and top marketing firms, Juul’s e-cigarette seems uniquely designed to become commonplace in high schools.
“Juul’s advertising imagery in its first six months on the market was patently youth oriented,” Jackler wrote in his study. “For the next two and a half years it was more muted, but the company’s advertising was widely distributed on social media channels frequented by youth, was amplified by hashtag extensions, and catalyzed by compensated influencers and affiliates.”
In November 2018, under intensifying scrutiny for its role in the rise of teen vaping, Juul stopped posting to its US social media accounts and withdrew some of its more youth-oriented flavors—like creme brulée, mango, and cucumber—from retail stores. Those flavors were still available to buy online until October 17, 2019, when Juul abruptly discontinued them to appease regulators—but mint, menthol, and two tobacco flavors are still for sale online and in stores.
But to some extent, the damage has already been done. Hundreds of thousands of memes, selfies, and other posts can be found on Instagram under hashtags like #juulnation, #juullife, #juultricks, #juulgod, #juuling, #doitforjuul, and #juulinschool. Juul doesn’t pay for any of them.
“The hashtags live on, and have actually become more popular,” says Jackler in an interview with the Mercury. “You have kids marketing the product for them.”
In Oregon, lawmakers have been able to put some restrictions on e-cigarettes, but those rules mostly concern where people are allowed to vape and age limits for purchasing e-cigarettes. (Those age limits can easily be circumvented—a recent FDA investigation identified 1,300 US retailers that had sold to underage customers, and many teenagers get Juuls from older friends.) But when it comes to regulating the actual contents of tobacco products and how they are advertised, the onus falls on the FDA.
“We haven’t been entirely hands-off, but we see this as a place where the federal government has the authority,” says Dean Sidelinger, the state health officer at the Oregon Health Authority (OHA). “It makes sense from a product standpoint to keep that centralized, so manufacturers know what the rules are.”
“We have this very large void of regulation that, naturally, these big companies like Juul have jumped right into and taken advantage of.”—Ellen Rosenblum, Oregon Attorney General
Like health authorities in other states, the OHA has submitted several public comments to the FDA over the years, urging the agency to take stronger action on regulating e-cigarettes. Sidelinger says he was concerned about e-cigarettes long before the recent wave of lung illnesses. While additives in e-cigarettes like artificial flavoring, propylene glycol, and glycerin are considered generally safe when eaten, that doesn’t necessarily mean they are safe to inhale. And from a public health standpoint, e-cigarettes—touted by companies like Juul as a safer alternative to cigarettes for adult smokers—are now addicting a new generation to nicotine.
“That safe component doesn’t relate to when you are heating [vape cartridges] up, often changing the compounds that are in the liquid, and then breathing them into your lungs,” Sidelinger says. “And adolescents are more susceptible to nicotine than adults, so what is that doing to their brains?”
Oregon is one of several states investigating Juul’s practices, and North Carolina has already sued the e-cigarette company for its youth-targeted marketing tactics. Rosenblum suspects that, if the FDA had regulated e-cigarettes from the start, states like Oregon wouldn’t have been forced to litigate.
“We have this very large void of regulation that, naturally, these big companies like Juul have jumped right into and taken advantage of,” Rosenblum says.
The tobacco industry as a whole spends $100,000 million on advertising in Oregon each year—more than 11 times what the OHA spends on tobacco-use prevention campaigns. But Sidelinger says the OHA is being smart with how it spends that budget by taking a page out of Juul’s own marketing playbook.
“We know we’re often up against an industry that has more resources,” Sidelinger says. “Online is often where [teens] are, so we’re working on getting advertisements there.”
Only now is the FDA taking immediate steps to impose stricter regulations on e-cigarettes. Beginning in May 2020, e-cigarette companies will likely have to apply to the FDA for approval before putting products on the market. They may also need to prove to the FDA that their products do more good than harm—meaning they’ll need to show that their e-cigarettes are used primarily by adults switching from traditional cigarettes, rather than by teens and first-time tobacco users.
Regulations aren’t enough for Merkley. Along with Republican Senator Mitt Romney of Utah, he’s introduced a bipartisan bill to completely ban all flavored vaping products.
“If the argument is that vaping is helpful for adults to get off of cigarettes, a single unflavored product—or menthol, to match what’s in cigarettes—should be it,” Merkley says. “Nothing else.”
Considering that even a state-level, temporary ban in Oregon is now halted, it’s unclear if a permanent, federal ban on flavored e-cigarettes is politically or legally feasible. But for Merkley and other Oregon lawmakers, one thing is clear: They can’t count on multi-billion dollar companies like Juul to regulate themselves.
Jackler agrees. When he was working on his Juul advertising report in 2018, he asked some underage interns to attempt to buy items from Juul’s website. When they entered their ages, they were turned away from the website—but the next day, they received emails from Juul with coupons for its products, and a warm message:
“Welcome to JUUL.”