2019-11-05 by W.M.
JUUL’s ‘Banned’ Flavors Are Still Absolutely Available in New York City
On a Thursday afternoon in mid-September, the supply of Mango JUUL pods at Lucky Tobacco Shop in Brooklyn was running low. The Mango stock had dwindled to just a few boxes, though supplies of Mint, Menthol and Tobacco were plentiful; stacks of them leaned against a wall behind one of the small store’s glass counters. Saif, a manager, said it’d gotten harder to keep the flavored pods in stock over the past year, and he didn’t know when or if he’d be able to re-up: “Once that’s gone, that’s it,” he kept repeating.
It’s more bizarre that Saif had any Mango pods to sell at all; nearly a year ago, in November 2018, JUUL Labs elected to pull four of its flavors—Fruit, Creme, Cucumber, and Mango—from store shelves as a way to combat assertions that it marketed nicotine to kids and teenagers. Ever since then, those pods were only supposed to be available online, with an age-verified ID, and in limited quantities to prevent illicit resale. JUUL had an entire action plan to go with its new restrictions: The company promised to increase its secret shopper visits from 500 to 2,000 per month; dole out “financial consequences” to stores breaking the rules; and ultimately sever ties with any store that racked up too many violations.
“For us to successfully fulfill our mission of helping adult smokers, we must be trusted—and we must earn that trust,” JUUL Labs CEO Kevin Burns wrote in the company’s announcement. “That starts with action, not words.” On paper, JUUL had done good. FDA Commissioner Scott Gottlieb praised its decision to pull flavors as a “responsible” one, in light of the newly identified teen vaping “epidemic.” But in practice, JUUL doesn’t seem to have done much to uphold its own restrictions. Bodegas and tobacco shops throughout New York City maintain varying stock of the restricted JUUL flavors. Of the more than 20 stores VICE visited throughout Williamsburg, Bedford Stuyvesant, and several neighborhoods across lower Manhattan, all but two stores with JUUL products on their shelves had at least one of the banned flavors available. Some were on display in sidewalk-facing windows, others in cases with the rest of the stock, and others still were kept out of sight, but available upon inquiry.
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In lieu of selling illegally imported or counterfeit pods, stores that continue to sell JUUL’s flavored products aren’t running afoul of the actual law, but of a policy JUUL set itself, putting the onus of enforcement squarely on the company. Store owners and employees describe keeping flavors on shelves in a variety of ways, including importing them from Canada (where sales aren’t restricted) and buying them from trusted local distributors and wholesalers that were able to maintain stock; possible sources include illicit Canadian imports, finessed online purchases, hoarded stock from before JUUL limited its sales, and in some cases, passable knockoffs of real JUUL-branded pods.
Saif told VICE he’s been able to keep Mango in his case in the 11 months since JUUL’s self-imposed ban through a local wholesaler. In the past few months, he said it’d gotten significantly harder to get flavored pods that way, but there’s no way he’d buy from anyone else. “The distributor I have, I know he’s legit,” Saif said, adding that his main concern is getting fake pods that could cost him a customer. He’s not totally sure where, exactly, his distributor gets the flavored pods, just that, so far, they’ve been OK. His customers haven’t complained of any being counterfeit or otherwise bad. If his guy runs out, Saif runs out.
On October 3, multiple flavors of JUUL pods were still on clear display in this convenience store window in downtown Manhattan.
Numerous other bodega and vape store employees hinted at the existence of a shadowy distribution market for the nicotine pods. They said they have trusted distributors, and shook off further questions about who those distributors were, the same way a stranger might respond if you asked them where they get their weed from. Employees a few doors down from Lucky Tobacco at Vapeology 101 (which is listed as a JUUL-authorized retailer on JUUL’s website) had flavored pods in stock as recently as October 3, but declined to talk about how they got them. At another bodega on a highly trafficked street in Williamsburg, an employee actively volunteered that his store’s flavored pods came from Canada, as if to signify that they weren’t among the exploding market of imposter pods that bloomed in the wake of JUUL’s restrictions.
Aside from counterfeit pods—most of which come from unregulated warehouses in China, and are so ubiquitous that posts about them on the r/juul Reddit are treated as spam—JUUL’s overall popularity, and its decision to then try and self-efface from the market, opened the gateway for a flood of third-party, JUUL-compatible pods; like cutting off one head of a Hydra and watching it spawn dozens more. As the moral panic/public health crisis around vaping continues to swirl, these third-party pods are regarded with a high level of suspicion, because no one really knows what’s in their e-juice.
Haidar, a manager at a bodega in Bedford Stuyvesant, told VICE he only stocks JUUL pods because that’s what people want—his customers haven’t been interested in third-party products, and he believes that’s because they perceive them to be of “lower quality.” Haidar keeps his Mango JUUL pods tucked out of sight, and said he gets them from a wholesaler in East New York called Vape Plus. On Vape Plus’s website, the only JUUL-branded pods available are those allowed in stores: Mint, Methol, Classic Tobacco, and Virginia Tobacco. But inside—a place you’re only allowed to go if you have a business license—Haidar said the second floor is filled with pods in every flavor. Reviews on the warehouse’s Google profile accuse Vape Plus of selling counterfeit JUUL pods; but if Haidar’s Mango pods were bogus, no one’s ever complained to him about it. Vape Plus did not respond to request for comment.
JUUL is aware of the counterfeit problem. In November 2018, shortly after the company announced it was pulling flavors from shelves, JUUL filed patent claims against counterfeiters in the United States, China, and Uruguay that were selling “JUUL-compatible” copy-cat pods. The company took issue with the threat to its intellectual property, but also raised concerns that these fake pods contained “unknown and unregulated” ingredients, and came in flavors that were “clearly marketed to kids”—an accusation JUUL itself was actively trying to avoid.
In an emailed statement to VICE, JUUL said “we have not sold Fruit, Creme, Mango or Cucumber JUUL pods to retailers since November 2018. So, inventory of these flavored pods can be illegal counterfeit or diverted products or leftover bona fide JUUL inventory from before the November 2018 policy change and resulting stop shipment.” But the JUUL-branded pods available throughout New York City aren’t all counterfeit, nor are they all from Canada (Canadian packaging is generally recognizable because it has French printed on it in addition to English). JUUL maintains that it doesn’t accept retail orders and “capped unusually large purchase orders” to keep flavors off shelves; the company also said it continues to “work to remove counterfeit and diverted products from the marketplace by working with local law enforcement agencies around the world, customs and border patrol agents and through the legal system.” Yet flavored pods, somehow, remain readily available throughout the country’s biggest city.
Mango JUUL pods remained available at a vape store in lower Manhattan in mid-October.
Saif said people purporting to be JUUL brand representatives come by regularly to update sidewalk-facing signage on his store windows. Only once did one of these reps raise concern about the flavored pods Saif had on clear display in his case, though he wasn’t there when this happened. He told VICE that one of his employees called him, frenzied, because a guy who said he worked with JUUL came in and snapped a photo of the case where the JUUL stock was. The JUUL rep allegedly told the store employee he had to take the flavored pods down, but didn’t do anything else. Saif took the pods down temporarily but eventually put them back on display. The last time a rep came in, the pods were once again visible. Saif said all this rep did was pull out a new sign from a bag; one that only advertised Menthol and Tobacco pods, and put it on Saif’s store window.
The failure to fully enforce its own policy has implications for JUUL far beyond a failed promise. The counterfeit market grew exponentially after JUUL pulled flavors from retail shelves, as did the market of third-party, JUUL-compatible pods. JUUL pulling flavors didn’t result in a cessation of all flavor sales; it merely created the opportunity for new brands to fill the newly empty space. If JUUL was never going to actively and uniformly enforce the policy to keep flavored products off shelves, arguably the ban may have done more harm than good. When asked about the purpose of the secret shopper program, a JUUL spokesperson simply pointed to a public post from the company newsroom that mentions the increased number of visits to increase retailer compliance.
Eric Lindblom, director of Tobacco Control and Food and Drug Law at Georgetown University and a former FDA agent, told VICE that virtue-signaling maneuvers like JUUL’s are common among big tobacco. “You can go back to 1959, all the major companies put out this big statement about how they were going to market their products responsibly, and of course they didn’t,” Lindblom said. “Over and over again, [tobacco companies] say they’re going to act responsibly, but they’re profit-maximizing companies. They try to avoid being embarrassed but when push comes to shove, they’ll do whatever they can legally to maximize their profits and, quite a few times, they’ve stepped over the line.”
When I told Linblom that I’d noticed flavored JUUL products in stores around New York City, despite the company’s own promise, he paused. “That’s interesting, because that contradicts… JUUL could get slammed for that,” he said. “JUUL started out talking about how they only wanted to be a product for adult smokers, no interest in youth, they were a good-guy company trying to improve the public health. If it came out that a lot of their product is still available in retail, they’re going to get hammered again.”
A 90-day ban on all flavored e-cigarette products (except tobacco and menthol) was set to take effect in New York on October 4. Before it was ultimately blocked on the evening of October 3, bodega and vape store owners were in something of a state, like people preparing for a hurricane by boarding up the windows. Mohammed, an employee at a convenience store in downtown Manhattan, turned my question about what he planned to do with his significant supply of flavored products (which included the full line of JUUL pods) back on me: “What would you tell me to do with them, if you were my friend?” he asked. Ultimately he conceded that he’d wait to see what everyone else around did before he threw out thousands of dollars worth of stock. As recently as October 20, all of JUUL’s flavored pods were still on display in his sidewalk-facing window.
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