On Wednesday, there was a great disturbance on Twitter, as if thousands of writers suddenly cried out in terror and were suddenly silenced: the Food and Drug Administration is reportedly preparing to ban Juul Labs Inc. e-cigarettes in the United States.
Why Juul and not, say, any other e-cigarette company? Or why not the entire vaping industry? It ultimately boils down to the fact that our regulators are unambitious cowards. Like many companies, such as Uber, Juul enjoyed early success because it brazenly broke laws. In Juul’s case, it advertised its products to children before pivoting and advertising its products as a way for adults to quit smoking. It packaged this regulatory arbitrage—when companies gain an edge by staying a step ahead of the law—with a sleek device; the classic “move fast and break things” tech playbook.
Ultimately, Juul is an easy target, and many other companies perpetuating various harms perhaps even more widely than Juul—considering its recently slumping sales—deserve the same treatment from regulators.
For close to a decade after their launch in the 2000s, e-cigarettes, vapes, and other electronic nicotine and tobacco products were largely unregulated products. Regulations slowly caught up over the years—the passage of the Phillip Morris-backed 2009 Family Smoking Prevention and Tobacco Control Act gave the FDA regulatory authority over tobacco products, but also grandfathered in pre-existing tobacco products and effectively protected existing tobacco companies from competing against alternatives—culminating in 2016, when the FDA published a rule classifying electronic nicotine delivery systems (e-cigs, vape pens, etc.) as tobacco products. Manufacturers were given until May 2018 to keep selling before they’d be required to submit applications or face removal from the US market, which was delayed to September 2020. In the meantime, tobacco giant Altria Group (the parent company of Phillip Morris) acquired a 35 percent stake in Juul for $12.8 billion in 2018.
Juul’s troubles began shortly after, quickly becoming a main target for regulators. In 2018, the company (which then controlled nearly 80 percent of the e-cig market) caught the FDA’s attention thanks in part to the revelation that it was targeting minors with advertising on children’s websites as well as with the introduction of fruity, candy, dessert, and other sweet flavors. This, along with the rapid growth of teenage vaping, raised fears that it could potentially reverse progress made in cutting underage smoking by increasing nicotine dependence or leading to later cigarette use, all without a concrete understanding of long-term effects on health.
Still, in a bid to please regulators over the next two years, Juul pulled back its advertising targeting children, stopped selling its child-friendly flavors, and submitted a 125,000 page application for its tobacco products (specifically a menthol and a tobacco-flavored e-cigarette) to remain on the market. All of it appears to have been for nought: while Juul will appeal the decision, if approved it’ll lock the company out of the market where most of its sales are.
As the Wall Street Journal pointed out when reporting the move, it’s a bit of a surprise the FDA came down on Juul. Was Juul targeted because of its partial ownership by Big Tobacco? No, because Juul’s biggest rival, Reynolds American Inc., is a subsidiary of British American Tobacco—the world’s largest tobacco company. In fact, while the FTC filed an antitrust complaint against Juul alleging Altria purchased its stake in Juul with an agreement to not compete with Juul, it was dismissed by a judge this year.
Is it because of a desire to crack down on tobacco-flavored e-cigarettes, or vaping in general? Also no, because Juul’s competitors—Reynolds American Inc. and NJOY Holdings—got approval in October 2021 and April 2022 to put their tobacco-flavored e-cigarettes on the market. It’s worth noting here that in 2019 Altria walked away from a $187 billion merger with Juul amid mounting regulatory pressure, instead deciding to bring its own vaping technology to market, which is approved by the FDA.
The differences between Juul and its competitors are minimal at best—especially now that the sweet and fruity-flavored products once synonymous with Juul have also been banned by the FDA. Juul is reportedly being hit with a ban because it was the first to get caught and will be made an example of. But even more importantly, regulators aren’t capable of or interested in more ambitious public health measures. Whatever you think of the public health benefits of electronic nicotine in whatever form as an alternative to traditional tobacco products, the crux of the situation is this: we’ve opted to solve a political/social problem (smoking) with a technological solution (e-cigarettes) designed, developed, and distributed largely by those responsible for the problem.
This arrangement isn’t a novel one, just like Juul’s cavalier approach to becoming dominant. Pick any problem and the chances are you’ll find a technological fix offered by those responsible.
Take pollution, or traffic congestion, or public transit systems in large metro areas, which over the past decade have consistently gotten worse. One major reason for that trend is the expansion of app-based ride-hail platforms like Uber and Lyft. Thanks to a relatively hands-off approach by policymakers nationwide, these firms leveraged legal loopholes and investor capital in various markets to massively expand, entrench themselves elsewhere, write their own regulations to expand those loopholes, and eventually integrate themselves into a city’s transportation system. As more cars were thrown on the roads, on-demand transit was pitched as a way to circumvent the traffic jams. As urban pollution worsened because of the deluge of private vehicles and ride-hail demand, they made empty promises about transitioning their fleets to electric vehicles. As public transit systems bled riders and revenue, these firms offered to partner with public transit authorities to better optimize their systems.
Or take Amazon. As a result of one problem it created (how to deliver things faster), the lives of millions have been warped to fit its needs. It forces back-breaking labor on workers who are injured at unprecedented rates, contributing to a turnover rate so high that Amazon internally warns it may run out of US workers in two years. Its delivery drivers are forced to meet punishing delivery schedules that all but ensure accident and injury. It hunts all over the country for sprawling warehouses to better feed and grow its logistics machine, now in a situation where it has too much property on its hands.
Companies that led the way in creating unethical artificial intelligence products and platforms for biometric surveillance and predictive policing (Microsoft) or ecologically unsustainable language models (Google) are now touting ethical artificial intelligence teams to ostensibly reign in what they unleashed. Startups that offer financial products and platforms as a way to escape poverty or achieve financial independence, but more closely resemble casinos that impoverish traders before herding them right back inside. And when all else fails, a familiar tactic shared by Big Tech and Big Tobacco is ultimately to fund research that converges with its own talking points: we’ve seen this as companies produce research defending app-based labor platforms, business models centered on artificial intelligence, gambling as investing, and so on.
Despite the convergence of the Big Tobacco and Big Tech playbooks, it’s an open question if policymakers will ever take any sort of action analogous to the Juul ban against companies whose harms are arguably much more widespread, and more demonstrable. At this moment, for example, a bipartisan antitrust bill aimed at stopping the largest platforms from anti-competitively self-referencing themselves is facing incoherent opposition that might derail the effort as well as a committed lobbying blitz from Amazon.
Still, even if policymakers find it difficult to get passed laws addressing clear economic harms, that shouldn’t dissuade us from asking: Why shouldn’t we ban more tech products when they harm people?
Uber and Lyft have degraded quality of life in urban areas, but are also intent on eviscerating labor laws to create a class of primarily Black and brown servants. Amazon leverages its ever-growing empire in market after market to push down working conditions, crush competitors, and degrade the quality of products generally. Microsoft and Google are helping police terrorize and surveil communities, as well as justify racist policing practices.
Whether or not this or that regulatory apparatus exists to outright ban products offered by these and other tech companies doesn’t really matter here—though the work of people like FTC Chair Lina Khan’s recent actions and past work sketch a path. The real question is why we hardly ever consider that as an option. Why is so much energy spent on preserving and tinkering with various technologies despite their harm, as opposed to simply saying they must be abolished because the costs are too much to bear?