Richmond Journal of Law and Technology

The first exclusively online law review.

Month: January 2019

Juuls: A Summary

By: Tevin Bowens

Have you ever heard of the term JUULing? It refers to using a JUUL e-cigarette to heat up and vaporize liquid to be inhaled through the mouth. While there are various kinds of e-cigarettes on the market, the JUUL is by far the most popular of them all.[1] The JUUL device was designed and created by James Monsees and Adam Bowen of PAX Labs who later formed JUUL Labs.[2]

The JUUL Device

A JUUL is a small hand-held device that has the outward appearance of a thumb drive and was created for the purpose of helping cigarette smokers make the transition away from cigarettes. Brandishing a $49.99 price tag for its starter pack, a JUUL device uses nicotine salts found in leaf tobacco as its core ingredient[3] and uses a closed loop temperature control algorithm designed to deliver the ideal amount of power at any given time to the JUULpod.[4] The JUULpod, located at the top of a JUUL, is a refillable pod filled with glycerol, glycol, and other ingredients.[5] The most notable of those other ingredients is nicotine. The nicotine content in a JUULpod ranges from 23mg to 40mp per pod,[6] which amounts to the amount of nicotine found in 1-2 packs of cigarettes.

JUUL’s Target Demographic

As of today, JUUL Labs asserts that JUUL was created to provide an alternative option for adults who wished to no longer smoke cigarettes and that their product is not intended for anyone else.[7] JUUL requires a minimum age requirement of thirty-five years old and a person must be a previous cigarette smoker if they wish to model in JUUL’s advertisement campaign. But this was not always JUUL’s strategy.

Back in 2015, JUUL used models as young as twenty-one years old and they also advertised heavily on social media platforms—locations known for high teenage use. The popularity of the JUUL device and its use among teens was so widespread that the topic was the primary focus of an episode of the Comedy Central show South Park.[8] This popularity amongst teens continued to rise and spread through the onset of 2018 until the Food and Drug Administration finally stepped into the picture. Initially, back in April of this year, the FDA sent a collection letter to JUUL labs seeking documents “relating to marketing practices and research on marketing, effects of product design, public health impact, and adverse experiences and complaints related to JUUL products.”[9] Five months later, the FDA conducted a surprise investigation of JUUL labs seizing documents relating to the company’s sales and marketing practice. [10] Finally, the FDA ordered that JUUL find a way to address youths having access to their devices or risk having their flavored pods banned in the country.[11] In response, JUUL Labs pulled its flavored pods out of retail stores, created an age restriction system on its website, and deleted most of their social media accounts.[12] All done in the effort to prevent youths from having access to JUUL devices.

The Future

            JUUL Labs is currently worth around $15 billion.[13] These changes are a step in the right direction, but it appears to be too little too late. There is evidence showing that this outcome may have been the intention of JUUL labs. Dating back to 2015, management for JUUL Labs was apparently aware that the devices were appealing to teenagers.[14] But nothing was done for nearly three years and even that came only after being threatened by the FDA.

The damage is already done. For nearly three years teens have been using and becoming addicted to JUUL pods. JULL’s prevention measures in place will do little in terms of stopping teenagers from procuring flavored JUUL pods. At best, the age restriction will slow teens down from getting their hands on flavored JUUL pods. Even if the FDA fined the company JUUL would still come out ahead. It is well-known that nicotine is a profitable business and JUUL just enlisted almost an entire generation of people who will buy their products for many years to come. While the FDA determines its next course of action, we are left to determine the sincerity of JUUL efforts to thwart the use of teenagers using their products.

 

[1] Will Yakowicz, Why Juul, the Most Popular E-Cig on the Market, Is in Trouble, Inc. (May 11, 2018), https://www.inc.com/will-yakowicz/juul-has-a-problem-its-too-cool.html.

[2] Rakesh Sharma, Which Company Is Behind Popular E-Cigarette, JUUL?, Investopedia (December 7, 2018), https://www.investopedia.com/news/which-company-behind-popular-ecigarette-juul/.

[3] Alyssa Stahr, New Product: PAX LABS Introduces E-CIGARETTE JUUL, VapeNews (June 01, 2015), https://vapenews.com/vape-news/new-product-pax-labs-introduces-e-cigarette-juul/.

[4] JUUL Support, https://support.juul.com/home/learn/faqs/juulpod-basics.

[5] Id.

[6] Id.

[7] Korin Miller, What Is Juuling And Is It Really That Bad For Your Health?, Women’s Health (September 12, 2018), https://www.womenshealthmag.com/health/a18377132/juuling/.

[8] David Hookstead, the new ‘south park’ episode will cover vaping. Check out the hilarious preview here, The Daily Caller (October 17, 2018), https://dailycaller.com/2018/10/17/south-park-vaping-tegridy-farms-preview-video/.

[9] Food & Drug Administration, JUUL Document Collection Letter, https://www.fda.gov/downloads/tobaccoproducts/labeling/rulesregulationsguidance/ucm605490.pdf.

[10] Jen Christensen, FDA seizes thousands of documents from e-cigarette maker Juul, CNN Health (October 2, 2018), https://www.cnn.com/2018/10/02/health/fda-juul-e-cigarette-surprise-inspection-bn/index.html.

[11] Anna Edney, FDA Threatens to Pull E-Cigarettes to Fight the Rise of Kids Vaping, Bloomberg (September 12, 2018), https://www.bloomberg.com/news/articles/2018-09-12/fda-threatens-to-pull-e-cigarettes-to-fight-rise-of-youth-vaping.

[12] ABC Chicago, Juul to eliminate social media accounts, stop retail sales of flavors, abc7 Chicago (November 13, 2018), https://abc7chicago.com/health/juul-to-eliminate-social-media-accounts-stop-retail-sales-of-flavors/4681584/.

[13] Olivia Zaleski, E-Cigarette Maker Juul Labs Is Raising $1.2 Billion, Bloomberg (June 29, 2018), https://www.bloomberg.com/news/articles/2018-06-29/e-cigarette-maker-juul-labs-is-raising-1-2-billion.

[14] Matt Richtel and Sheila Kaplan, Did Juul Lure Teenagers and Get ‘Customers for Life’?, NYTimes (August 27, 2018), https://www.nytimes.com/2018/08/27/science/juul-vaping-teen-marketing.html.

The Uncertain Road Ahead for Transportation Network Companies

By: Tevin Bowens

When it comes to the gig economy—specifically transportation network companies (TNCs) such as Uber and Lyft—uncertainty in legislation is one of their toughest problems to overcome. Today, forty-nine states in the U.S. have some form of state-wide legislation regarding TNCs.[1] There are a handful of states that focused only on creating insurance requirements. The biggest group of states sought to clarify the laws in their state in an attempt to help TNCs by allowing them to effectively plan for the future. However, two states—California and New York—are taking the “quality over quantity” approach thinking such an approach will benefit all parties involved, but in reality their approach does more harm than good.

The California Approach: The ABC Test

The California Supreme Court issued the new ABC test[2] in an attempt to make it easier for employers to label their workers properly as employees or independent contractors.[3] This ruling comes in response to countless wrongful employment classification suits against TNCs in the state. The rationale being that if more people are properly classified as employees it will allow for more benefits such as minimum wage and overtime that ultimately improve living conditions for drivers in the state.

The unfortunate truth is that the law makes the future an uncertain one for TNCs by making it hard to accurately pinpoint who should be labelled as a cheaper work-for-hire independent contractor or a benefits-entitled employee. The ABC test opens TNCs up to lawsuits that will oftentimes end with expensive settlements.[4] Some TNCs, such as Uber, respond by offering the lowest possible wages,[5] give less incentives,[6] and raise customer prices without paying the drivers any of it.[7]

The New York Approach: Driver Cap & Minimum Wage Floor

Earlier this year New York’s city council passed a number of “for-hire vehicle” legislation.[8] However, the two that have the most impact on TNCs are Int. No. 890-B[9] and Int. No. 144-B.[10] Together these two laws are meant to increase the minimum fare per ride, minimum wage, and an unprecedented cap to the amount of TNC drivers to be authorized each year. These laws come in response to public outcry regarding poor driver treatment and the congestion of New York’s streets by drivers of TNCs. New York hopes that with higher pay and less traffic everyone will be happy.

Similar to California’s approach, New York creates an uncertain future. The only difference from California is that the uncertainty, in New York, will be felt primarily by the drivers and customers of TNCs. The discussion for increase in pay is no different than the previous one for California’s approach. What is new is New York’s novel attempt at limiting the amount of TNC drivers on the roads. The simple truth is that there was traffic before Uber and Lyft and there will be traffic afterwards as well.[11] Uber has already made the warning that less drivers will only lead to longer waits and higher prices, which will not pass onto their drivers.[12]

California or New York Approach: Who Wins?

Short answer is that nobody actually wins, but larger TNCs such as Lyft and Uber will walk away the least harmed. Both approaches have the legislatures attempting to make the hard decisions for the TNCs. In California, lawmakers are trying to force benefits on drivers for TNCs. In New York, lawmakers will tell TNCs how much to pay their drivers and how many drivers they can hire. Both sides created these laws adding a level of uncertainty to TNCs, the drivers, and even the customers, but ultimately, they fail to realize the ineffectiveness of this approach.

TNCs will always have the final say when it comes to legislation such as New York and California’s. TNCs can penny pinch at the driver and customer’s expense or they can make the decision to leave the jurisdiction altogether. Either way, it’s the drivers and customers who are taking the biggest blow.

 

[1]Rachel Monahan, Bill to Legalize Uber Across Oregon Dies in Legislative Committee, Willamette Week, (April 17, 2017), https://www.wweek.com/news/state/2017/04/17/bill-to-legalize-uber-across-oregon-dies-in-legislative-committee/.

[2]The three factors that make up the ABC test are as follows: A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

[3]Dynamex Operations W. v. Superior Court4 Cal. 5th 903.

[4]Heather Somerville, Judge approves $27 million driver settlement in Lyft lawsuit, Reuters, (March 16, 2017), https://www.reuters.com/article/us-lyft-drivers-idUSKBN16N30D.

[5] Rani Mola, Uber drivers and other gig economy workers are earning half what they did five years ago, Recode (September 24, 2018), https://www.recode.net/2018/9/24/17884608/uber-driver-gig-economy-money-pay-lyft-postmates.

[6]Christian Perea, Everyone Is Upset About New Surge and Prime Time. Should They Be?, The Rideshare Guy (June 6, 2018), https://therideshareguy.com/everyone-is-upset-about-new-surge-and-prime-time-should-they-be/.

[7]JC, Uber Raising Prices – But Drivers Won’t Benefit, Ridester (November 10, 2018), https://www.ridester.com/uber-raising-prices/.

[8]Mayor de Blasio Signs For-Hire Vehicles Legislation, New York City Gov, (August 14, 2018), https://www1.nyc.gov/office-of-the-mayor/news/409-18/mayor-de-blasio-signs-for-hire-vehicles-legislation.

[9]The New York City Council, INT 0890-2018 Introduction, https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3487613&GUID=E47BF280-2CAC-45AE-800F-ED5BE846EFF4.

[10]The New York City Council, INT 0144-2018 Introduction, https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3331789&GUID=6647E630-2992-461F-B3E3-F5103DED0653.

[11]Allssa Walker, NYC’s Uber cap won’t solve the city’s traffic problem, Curbed New York, (August 9, 2018), https://ny.curbed.com/2018/8/9/17671300/nyc-uber-lyft-regulation-traffic-congestion-pricing.

[12]Emma G. Fitzimmons, Uber Hit With Cap as New York City Takes Lead in Crackdown, The New York Times, (August 8, 2018), https://www.nytimes.com/2018/08/08/nyregion/uber-vote-city-council-cap.html.

Powered by WordPress & Theme by Anders Norén

css.php