A recent New York Times opinion article by Former FDA Commissioner (1990-1997), David A. Kesslerm, states the Juul e-cigarette design appeals to kids. Kesslerm opines the product design matches the “tobacco playbook” by decreasing the harshness of the nicotine and inhaling effect to increase use in new smokers.

Kesslerm cited tobacco industry documents from the fifties that revealed an insidious strategy to design such products to draw in new users. The internal studies revealed “product design changes that make cigarettes more palatable, easier to smoke, or more addictive are also likely to encourage greater uptake of smoking.” Kesslerm asserts this is exactly the type of product created by Juul, which added organic acids to decrease harshness from the higher nicotine content.

Kesslerm also cited new FDA approval laws that will negatively affect Juul, but those statements may be a bit inaccurate. The regulations were delayed until 2021, and there is no guarantee they will go into effect even then. Meanwhile, Juul has captured ¾ of the e-cigarette market—many of them minors—and that domination will be hard to disrupt anytime soon. One bright hope is that U.S. states are instituting their own bans and restrictions to compensate for the toothless FDA. San Francisco, for instance, recently banned all e-cigarette sales within city limits.

Juul is currently in the “ask for forgiveness” stage of their e-cigarette launch. Instead of heeding the precedential warnings against traditional cigarette companies, Juul resuscitated most of the banned cigarette practices. They created candy and fruit flavors; they targeted underage markets with cool, teen-appealing ads; they upped the nicotine content—a substance known to cause addiction; and they claimed use of their product is healthy (i.e., unproven claims that it is a smoking cessation product).

Juul capitalized on an unregulated market and is now following a textbook “don’t ask for permission, ask for forgiveness” strategy with “we didn’t mean it; we didn’t do it” public statements. Unfortunately, this strategy may work—it took forty years to hold big tobacco accountable for consumer harm.

Kesslerm’s NY Times op ed ends with a pertinent 1963 quote from tobacco executive, Addison Yeaman of Brown & Williamson:

“We are, then, in the business of selling nicotine, an addictive drug.”

As it stands today, Juul appears to be in the same “business.”