33 state Juul settlement does not seem to have fixed problems with earlier settlements

On September 6, 2022, Connecticut Attorney General AG Tong announced that 33 states and Puerto Rico who were suing Juul for its predatory marketing had reached a settlement in principle. Tong’s press release stated, “Both the financial and injunctive terms exceed any prior agreement JUUL has reached with states to date.”

While the devil is always in the details and the actual settlement document has yet to be released, Tong’s assessment may be overstated.

First, on a population basis, the 33 states are getting less money than North Carolina or Washington did when they settled with Juul:

State	Settlement (million)	Population (million)	Dollars per capita
North Carolina	$40.0	10.5	$3.81
Washington	$22.5	7.7	$2.92
33 states	$483.5	155.3	$2.82
Louisiana	$10.0	4.6	$2.17
Arizona	$14.5	7.3	1.99

The $2.82 per capita Juul is providing the 33 states is also less than the $2.89 per capita average payment to the first four settling states.

AG Tong’s press release Juul has agreed to refrain from:

• Youth marketing
• Funding education programs
• Depicting persons under age 35 in any marketing
• Use of cartoons
• Paid product placement
• Sale of brand name merchandise
• Sale of flavors not approved by FDA
• Allowing access to websites without age verification on landing page
• Representations about nicotine not approved by FDA
• Misleading representations about nicotine content
• Sponsorships/naming rights
• Advertising in outlets unless 85 percent audience is adult
• Advertising on billboards
• Public transportation advertising
• Social media advertising (other than testimonials by individuals over the age of 35, with no health claims)
• Use of paid influencers
• Direct-to-consumer ads unless age-verified, and
• Free samples.

Tong also reported that, “The agreement also includes sales and distribution restrictions, including where the product may be displayed/accessed in stores, online sales limits, retail sales limits, age verification on all sales, and a retail compliance check protocol.”

These are all limitations that Juul has already implemented in response to other political and legal pressure, so there could not be a major change in its behavior. Of course, making these commitments legally enforceable would be a good thing, but the earlier settlements have been notably weak on enforcement, generally leaving it to Juul to monitor its own actions.

There is nothing in the press release to indicate that the new settlement changes any of this.

In addition, like the three settlements following North Carolina, the new 33 state settlement does not appear to require any additional document disclosure beyond the North Carolina settlement, which has severe limitations. (And more than a year later, not a single Juul document has been made public.) This is a huge disappointment because, as Minnesota AG Hubert Humphrey III said of the Minnesota lawsuit in the 1990s, “the most important thing to come out of these lawsuits will be the truth.”

Of course, since the final document has not yet been released there is always the possibility that these problems will be fixed. (Here is one way to write a settlement that would actually protect kids.) But the history so far is not encouraging.

The fight is not over. There are still 9 state cases pending, including California and New York, as well as over 3600 private lawsuits. Hopefully, they can strike deals that will be more clearly effective at promoting public health and seeing that the full truth in the Juul documents comes out.

Here is an excellent story by StatNews on the limitations of the settlement.