SILVER SPRING, Md. — As of Friday morning, employees at the Spinx convenience-store chain were pulling Juul electronic cigarette products from shelves. It wasn’t a decision that Chris Dillard, tobacco category manager at the Greenville, S.C.-based chain with 84 convenience stores, thought he’d have to make.
“It was very shocking for us,” Dillard told CSP Friday morning concerning the U.S. Food and Drug Administration’s issuance of a marketing denial order (MDO) to Juul Labs Inc. for its e-cigarette products, “because we were so optimistic when NJOY came through, we had not put a real definite plan in place if Juul were to come off the market.”
The FDA has already authorized 23 electronic nicotine delivery system (ENDS) products under the premarket tobacco product application (PMTA) pathway, including for tobacco-flavored products from Juul’s biggest rivals, Reynolds American Inc., Winston-Salem, N.C., and NJOY Holdings Inc., Scottsdale, Ariz.
Josh Sharp, CEO of the Illinois Fuel and Retail Association, which represents more than 6,000 retail locations in Illinois, said the move was a ridiculous overreach by the FDA, which is picking winners and losers in the vaping space. The retailers in the association are upset at the precedent this sets, he said, adding that “the FDA should be dealing with more pressing matters.”
The FDA issued MDOs for the San Francisco-based e-cigarette company on June 23, mandating that the Juul device and four types of Juulpods—Virginia tobacco-flavored pods at nicotine concentrations of 5% and 3% and menthol-flavored pods at nicotine concentrations of 5% and 3%—be removed from the market.
While the FDA said Juul’s PMTA lacked sufficient evidence regarding the toxicological profile of the products to demonstrate that marketing them would be appropriate for the protection of the public health, Juul disagreed. The company said it intended to seek a stay on the decision and is exploring all its options, including appealing the decision.
In case Juul receives a stay or its MDO is overturned, Dillard is keeping Juul products in the backrooms at stores for now and instructing staff to tell customers that this was a government-mandated decision.
Juul was Spinx’s No. 2 brand, following Vuse Alto, which has a pending PMTA with the FDA.
While Dillard said he understands that the FDA is trying to prevent under-age e-cigarette users, he said it’s a “heavy-handed” approach. “You’re punishing the retailer because you're talking about a significant amount of sales and volume,” he said.
So now the question is, how does one make up for those lost sales? Dillard is looking at what products have received authorization from the FDA already, like Vuse Ciro and Solo products, and deciding what to add to the backbar.
“We’re kind of going through those gymnastics in real time,” he told CSP.
Many retailers in New England already had to go through a back bar reconfiguring when Massachusetts banned the sale of flavored tobacco products.
Jon Shaer, executive director at the New England Convenience Store and Energy Marketers Association (NECSEMA), said the Juul decision will likely hit surrounding states hard. He worries for what a Juul ban will do in terms of the illicit market.
“Where there’s demand, there’s a market, and the question is where do you want those products? How do you want those products sold? Who do you want selling them?” Shaer said.
This isn’t the first time Juul has faced headwinds.
The company was at the forefront of the teen vaping crisis, along with other e-cigarette manufactures, who came under scrutiny in 2019 when youth vaping significantly rose. Concerns surrounding vaping were further elevated after reports of illnesses and even deaths associated with vaping, with the Centers for Disease Control and Prevention (CDC) later attributed to vitamin E acetate, an additive sometimes used in vaping and tetrahydrocannabinol (THC) products as a thickening agent.
Juul pulled its flavored pods in 2019, citing the “lack of trust” in the industry at the time. Several states have sued Juul over its advertising practices saying the company designed and marketed its products to appeal to underage consumers. Some of those lawsuits have been settled, with Juul admitting no wrongdoing.
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