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Smoking Legislation and the E-Cigarette Epidemic

photograph of Juul pods with strawberries, raspberries, a peach, and a cocktail

At the end of the year, President Trump signed legislation changing the federal minimum age for tobacco and nicotine purchase from 18 to 21. This move to raise the federal smoking age was made in response to the popularity of e-cigarettes amongst teen users and the e-cigarette epidemic. To combat this public health crisis, attempts have also been made to ban flavored e-cigarettes. For e-cigarettes to stay on the market, vape companies will need to prove that they cause more good than harm. This proposed legislation applies to all e-cigarette companies, threatening the smaller vapor manufacturers as well as Juul Labs, who make up seventy-five percent of the nine-billion dollar industry.

Juul pods, marketed at millennials and teen users, contain twice the amount of nicotine found in traditional freebase nicotine e-cigarettes These products are especially addictive and are sold in a variety of fruity flavors making them very appealing to children. It’s unsurprising, then, that America’s youth are hooked. In fact, one can hardly walk across a college campus or use the bathroom of a high school without seeing a Juul user “fiending.”

But Juul Labs isn’t just selling their products to children; children are their targeted demographic. Although e-cigarette executives publicly claim nicotine vaporizing devices have always been about a safer smoking alternative to traditional combustible cigarettes, looking to social media advertising tactics from the company’s inception, as well as interviews with investors and employees, children have always represented a main marketing target. Using youthful brand ambassadors that fit the young demographic and advertisements featuring millennials at parties demonstrate the company’s clear attempts to market the sleek e-cigarette device to young people. A study conducted by the University of Michigan two years ago emphasized the dramatic rise in high school students – a generation with historically low tobacco use – in just a single year. And many blame Juul Labs for their irresponsible marketing tactics that created a generation of kids addicted to nicotine.

Even scarier than the addiction that it causes are the health risks. Throughout the summer of 2019, thousands of teens were hospitalized and 39 e-cigarette related deaths were reported to the CDC. Although the vaping illness was linked to vitamin E acetate, an ingredient in illicit THC vape cartridges, since the outbreak, legislatures have had full support of curbing teen vaping from concerned parents across the nation.

Another issue with Juul Labs is their association with Big Tobacco. While it may seem as though e-cigarette companies are the tobacco industry’s biggest competitor, for the most part, the tobacco industry and vaping industry are becoming more and more related. Altria, of Marlboro cigarettes, recently bought a 35% stake of Juul Labs for $12.8 billion, and the e-cigarette company’s CEO was replaced by K.C. Crosthwaite, an Altria executive. These changes left employees concerned and angered with their new relationship with Altria. How can a company whose mission is to provide a safer smoker alternative to combustible cigarettes be associated so closely with Big Tobacco?

While the danger the vaping epidemic presents is dangerous, and the specific targeting of kids seems objectionable, many wonder if the FDA should regulate e-cigarettes quite so heavily. The regulation of the vaping industry is a case of paternalism, where one’s choices are interfered with in order to promote one’s well-being and long-term interests. Some are concerned that the raising of the federal minimum smoking age is an overextension of the government’s authority, especially considering there is lack of evidence that nicotine e-cigarettes cause significant health issues. Similarly, because there are less immediate consequences of teen nicotine use (compared to teen alcohol use for example), such regulations may appear overcautious. There are more practical concerns at play as well; if vape products are banned, teens may be pushed to use combustible cigarettes or illicit vaping products that have been linked to respiratory disease. Although some are concerned about the restriction of personal choice, others view such laws as similar to mandatory seatbelt and compulsory child education laws.

Issues of classism and racism are rooted in the e-cigarette industry as they were in the tobacco industry. Because a large amount of stigma surrounds combustible cigarettes in the United States, smoking cigarettes is especially frowned upon by the middle class, and the habit is associated with those of a lower socioeconomic class according to British economist Roger Bate. Middle-class, adult vapers are conditioned to feel ashamed for smoking traditional combustible cigarettes. Similarly, many feel wronged that e-cigarettes are being regulated so heavily when flavored menthol cigarettes, claimed to be more addictive and are most commonly used by African Americans, remain on the market. Tobacco companies’ use of racially targeted marketing tactics of the addictive menthol flavored cigarettes are eerily similar to Juul’s early advertising blitzes, however, it seems that it is only when “young white people [are affected], then action is taken really quickly,” according to LaTroya Hester, spokeswoman for the National African American Tobacco Prevention Network.

Ultimately, any form of governmental intervention will cause debate about which personal liberties warrant being curbed, what our “best interests” are, and who is best positioned to know what those interests actually are. Juul and other e-cigarette companies might be blameworthy, but for many it’s not clear that the government should go to such great lengths to save us from ourselves.

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U-Haul’s Anti-Smoking Workplace Wellness

photograph of overcrowded UHaul rental lot

U-Haul International recently announced that, beginning next month, the company will not hire anyone who uses nicotine products (including smoking cessation products like nicotine gum or patches). The new rule will take effect in the 21 states that do not have smoker protection laws. The terms of employment will require new hires to submit to nicotine screenings, placing limits on employees’ lawful, off-duty conduct.

The truck and trailer rental company has defended the new policy as nothing more than a wellness initiative. U-Haul executive Jessica Lopez has described the new policy as “a responsible step in fostering a culture of wellness at U-Haul, with the goal of helping our Team Members on their health journey.” But as the LA Times points out, “Simply barring people from working at the company doesn’t actually improve anyone’s health.”

U-Haul, however, is not alone, and employer bans on smoking are not new. Alaska Airlines has had a similar policy since 1985, and many hospitals have had nicotine-free hiring policies for over a decade. But there are important distinctions between these past policies and U-Haul’s new policy. Alaska Airlines’ ban was, at least in part, justified by the risk and difficulty of smoking on planes and in places surrounding airports; smoking simply isn’t conducive to that particular work environment. Meanwhile, hospitals’ change in hiring process was meant to support the healthy image they were trying to promote, and to demonstrate their commitment to patient health.

Interestingly (and importantly), U-Haul has not defended its new policy as a measure to improve customer experience or improve employees’ job performance. The (expressed) motivation has centered on corporate paternalism – U-Haul’s policy intends to protect their (prospective) employees’ best interests against their employees’ expressed preferences – and this has significant implications. This isn’t like screening for illicit drugs or forbidding drinking on the job. As Professor Harris Freeman notes, it “makes sense to make sure people are not intoxicated while working … there can be problems with safety, problems with productivity.” But in prohibiting nicotine use, U-Haul “seems like they’re making a decision that doesn’t directly affect someone’s work performance.” Unlike Alaska Airlines or Cleveland Clinic,

“This is employers exercising a wide latitude of discretion and control over workers’ lives that have nothing to do with their own business interests. Absent some kind of rationale by the employer that certain kind of drug use impacts job performance, the idea of telling people that they can’t take a job because they use nicotine is unduly intrusive into the personal affairs of workers.”

Similarly, the ACLU has argued that hiring policies like these amount to “lifestyle discrimination” and represent an invasion of privacy whereby “employers are using the power of the paycheck to tell their employees what they can and cannot do in the privacy of their own homes.” This worry is further compounded by the fact that,

“Virtually every lifestyle choice we make has some health-related consequence. Where do we draw the line as to what an employer can regulate? Should an employer be able to forbid an employee from going skiing? or riding a bicycle? or sunbathing on a Saturday afternoon? All of these activities entail a health risk. The real issue here is the right of individuals to lead the lives they choose. It is very important that we preserve the distinction between company time and the sanctity of an employee’s private life. Employers should not be permitted to regulate our lives 24 hours a day, seven days a week.”

Nicotine-free hiring policies or practices that levy surcharges on employees who smoke tend to rely heavily on the notion of individual responsibility: employees should be held accountable for the financial burden that their personal choices and behaviors place on their employers and fellow employees. But these convictions seem to ignore the fact that smoking is highly addictive, and 88% of smokers formed these habits before they were 18. Given this, the issue of accountability cannot be concluded so cleanly.

Apart from concerns of privacy or questions about individual responsibility, smoking bans on employment present a problem for equality of opportunity. According to the CDC, about 14 percent of adults in the U.S. smoke cigarettes. But smokers are not evenly distributed across socioeconomic and racial groups. For instance, half of unemployed people smoke; 42% of American Indian or Alaska Native adults smoke, 32% of adults with less than a high school education smoke; and 36% of of Americans living below the federal poverty line are smokers. It’s not hard to see that nicotine-free hiring practices disproportionately burden vulnerable populations who are already greatly disadvantaged. U-Haul’s low-wage, physical labor jobs, from maintenance workers to truck drivers to janitors, are restricted from those who may need them most (on grounds that have nothing to do with a candidate’s ability to perform job-related tasks).

This is no small thing; the Phoenix-based moving-equipment and storage-unit company employs roughly 4,000 people in Arizona and 30,000 across the U.S. and Canada. Lopez has claimed that “Taking care of our team members is the primary focus and goal” and that decreasing healthcare costs is merely “a bonus,” but it’s hard to separate the two. A recent study by Ohio State University estimated the cost employees who smoke pose to employers. Added insurance costs as well as the productivity lost to smoke breaks and increased sick time amounted to nearly $6,000 annually. Clearly, employee health, insurance costs, and worker output are all linked, and all contribute directly to a company’s profitability. The question is who should have to pay the cost for the most preventable cause of cancer and lung disease: employers or employees?

It may be that the real villain here is employer-sponsored insurance. By decoupling one’s employment from one’s healthcare, companies like U-Haul might be less invested in meddling with their employees’ off-duty choices. They have much less skin in the game if their employees’ behaviors aren’t so intimately tied to the company’s bottom line. Unless healthcare in the US changes, we may be destined to constantly police the line separating our private lives from our day jobs.