In response to increasing restrictions on the sale of conventional cigarettes, companies such as Juul innovated to come up with e-cigarettes, which they claimed were safer, less addictive, and less harmful to consumers. The reduced harm allegedly came from the removal of the smoke; rather than inhaling burning tobacco, users could vape the steam, which also reduced second-hand smoke concerns. In addition, the vaping products offered new flavor profiles.

This new innovation quickly raised new problems, including a massive uptick in nicotine use among children and teenagers, who were attracted by the candy-like flavors that the e-cigarettes could add to their smoking habit. In addition, physicians soon learned that vaping caused substantial damage to users’ lungs, even without the smoke. Thus, regulators introduced new rules, determined to address what was quickly becoming an epidemic.

But, again, the companies have leveraged their innovative capabilities to find a workaround that, again, they claim is less harmful, though, again, without solid evidence in support of those claims. The new product innovations contain no tobacco, but they still offer a dose of nicotine, created synthetically. As a result, the Food and Drug Administration formally has no authority to regulate the products, because its legal scope in this domain is limited to regulating products that contain tobacco.

Some limited studies of the synthetic version of nicotine indicate it may be less addictive than the tobacco-derived molecule, but the researchers who conducted those studies are careful to note that no large-scale trials involving human or animal users have been conducted at all. That is, we have no evidence regarding how synthetic nicotine might affect consumers, especially over the long term.

Together with the new product formulation, producers such as Puff Bar have innovated new packaging that is smaller and disposable. Rather than investing in an e-cigarette pen and buying cartridges to refill them, the disposable vape pens are cheap and can be easily tossed by, say, a student caught with the prohibited device in a school bathroom. The creative marketing of these products also seems determined to target young consumers, because they continue to come up with sweet, sugary, candy-inspired new versions. Its sales channels are pretty innovative too; consumers can readily and easily buy the products from online sites, few (if any) of which require any proof of age to confirm that the buyers are legal adults.

The innovations have worked, seemingly as intended: An estimated 11 percent of high school students currently vape. Sales of the disposable devices rose by an astounding 290 percent, with sales of 6.46 million devices every single month, in 2021. The tobacco-based e-cigarettes that had been subjected to regulations instead suffered dramatic sales losses. That is, the new product innovation has essentially driven the existing version out of the market, in nearly no time.

Thus, vape pens filled with synthetic nicotine follow a traditional pattern of innovation, such that they have come to dominate the market in nearly no time. It represents a perfect example of how innovative ideas can create new opportunities for marketers. Unfortunately, it also offers a perfect example of how ignoring product harms and ethical standards can allow marketers to exploit and harm consumers with addictive and untested products.

Discussion Questions:

1. When is innovation a problem, rather than a benefit?
2. If companies can come up with creative ways to skirt the law, is it ethically acceptable or not?
3. Should the FDA regulate the use of synthetic nicotine?

Source: Christina Jewett, “The Loophole that’s Fueling a Return to Teenage Vaping,” The New York Times, March 8, 2022