The latest settlements between six states (California, Colorado, District of Columbia, Illinois, Massachusetts, New Mexico and New York) and the District of Columbia and Juul, announced on April 11, 2023, mostly follows the earlier North Carolina settlement, but does include some stronger provisions, particularly compared to the earlier 33 state settlement.
This summary is based on the California settlement. The others appear similar (e.g., New York).
The stronger provisions are:
- More money; on a per capita basis Juul is required to pay about 15% more than the North Carolina settlement (about $4.39 per capita for California, compared to NC’s $3.81 per capita, the 33-state settlement of $2.82 per capita and Louisiana’s $2.17 per capita) (Paragraph 50).
- Funding to cover the costs of making the Juul discover documents public at a university depository selected by the Attorneys General (Paragraph 45).
- A blanket prohibition on Juul funding or operating youth “education” programs. (Paragraph 3). The NC settlement has allowed Juul to do so if it received “express prior permission from the NC AG’s Office.”
- A prohibition on payment to place Juul products or the Juul name in movies, television, streaming or other entertainment programming (Paragraph 6).
- An agreement that Juul will not “promote or otherwise provide any Juul product to any consumers in any flavor that violates state or local laws in California” (Paragraph 9). As I already noted, this commitment will allow the Attorney General to stop internet sales of Juul menthol pods, which are illegal in California.
- Other marketing restrictions included in the NC settlement are described in more specific details, which could facilitate enforcement. For example, the provision limiting direct mail promotions to “verified users” (Paragraph 9), should stop unsolicited direct mail promotions to the general public.
The biggest disappointment is that the document disclosure provisions are essentially the same as the NC settlement, which has still not resulted in any public disclosure, a process that was supposed to be complete by July 2022. The new settlement leaves implementation of the disclosure of the documents covered by the NC settlement to NC, although the other states can have some involvement in securing additional documents note covered by the NC settlement (Paragraphs 43 and 44). The timeline for the additional documents is even slower than in NC, giving Juul 16 months to identify new documents for disclosure, which then triggers a months long process to actually obtain them.
Many of the weak marketing restrictions from the NC settlement remain. For example, the limitation that a single customer can only by 60 Juul pods per month directly from Juul via the internet (Paragraph 26), means little, because 1 Juul pod delivers the nicotine equivalent of 1-2 packs of cigarettes. In other words, 60 pods per month is like 2-4 packs of cigarettes per day.
These delays mean that the documents are not available to inform current e-cigarette policymaking, including assessment of Juul’s applications to the FDA.
For earlier settlements that included “most favored nation” clauses, these improvements will also apply to the earlier settlements.