Government Overreach, Now On Consumer Choice

Ryan Heshmati

August 19, 2022

Fast Facts:

  • JUUL Labs is a major flavored e-cigarette producer, that has been criticized for marketing products that are desirable for youth.

  • On June 23, 2022, the FDA ordered JUUL to stop selling its products in the U.S.

  • The FDA notes concerns regarding the company’s data regarding potentially hazardous chemicals in the pods holding the e-liquid that is heated and whose vapor is inhaled by users.

  • A day after the order, the FDA’s order was temporarily stayed by an appeals court.

  • On July 5, 2022, the Food and Drug Administration itself decided to administratively stay its decision pending further review of JUUL Labs’ application.

  • In a release on its website, the FDA points out that it has approved 23 other “electronic nicotine delivery system” products which they found, “...demonstrate to the agency… the[ir] marketing…would be appropriate for the protection of the public health.”

Recently the FDA acted to prevent the sale of JUUL’s e-cigarette products within the United States. While the order, which requires the company to pull all of its e-cigarette products, is challenged by the company, what it means for American priorities needs examination. In a country that has always emphasized its resolve in personal freedom, it seeks to reason that such a move by the FDA stands in contrast to the standard American policy regarding choice. Even if the FDA acts in what it believes is best for public health, as long as customers know the risks associated with their behavior, the choice should reside with them.

Despite potentially negative impacts, the e-cigarette product that JUUL Labs sells is not the first item Americans have shown a demand for. Alcohol, which itself saw a ban via a Constitutional Amendment in the early 20th century, has proven Americans are willing to bear the risks of their actions. The failure of Prohibition must be used as a cautionary tale, that not only is limiting customer choice unpopular, but also dangerous. In a PBS piece about Prohibition, historian Micheal Lerner pointed out, “As the trade in illegal alcohol became more lucrative, the quality of alcohol on the black market declined.” He continues by noting many died from the black market product. It is not difficult to foresee a future where formerly legal purchasers of JUUL’s products are forced to buy possibly dangerous black market substitutes as a result of the FDA’s order.

While the concern of underage use is real, illness related to vaping remains concentrated among adults. The New York Times “Vaping Illness Tracker” noted that 85% of those who suffered from “Vaping Illness'' were eighteen or older. Additionally, underage use of products not suited for them is not unique to vaping and is seen in other areas like traditional cigarettes, alcohol, or even illicit drugs.

The FDA asserts that JUUL must show its products have a positive impact on the health of the public. However, one must ask why this must be the standard. For instance, it seems difficult to apply and hold elsewhere, with the alcohol industry as an example. Additionally, regulators should always weigh public health against public freedom. While there are limits to public freedom, as seen with stay-at-home orders during the pandemic, the personal choice one, who is of legal age to do so, makes about what goes into their body should be respected, whether the subject is alcohol or vaping.

The FDA has positive intentions, but its impact must also be gauged. The failure of Prohibition, the fact underage use is not unique to vaping, and the clash between the interests of public health and freedom must be considered when evaluating the FDA’s decision to order JUUL to pull its products from the market.