BRATTLEBORO — Tobacco Prevention Specialist Rolf Parker is unequivocal: “Juul tried to shut us down,” he said.
Parker, who works with West River Valley Thrives and the Brattleboro Area Prevention Coalition, set out to educate youth on the dangers of vaping by publicizing the dangers and the wide availability of the electronic cigarettes online using video and social-media outreach.
Juul, the $16 billion company that manufactures the devices, claimed that Parker's efforts violate their trademarks and pressured YouTube and Facebook to remove his posts. Facebook threatened to block him from the site.
Though pressured to cease and desist, Parker was undeterred.
And he won. At least for now.
Fruity flavors for an addictive drug
In his work, Parker discovered how prevalent vaping has become among middle- and high-school-aged children.
While numerous companies manufacture e-cigarettes and produce liquid nicotine pods for them - and there are valid health benefits for their use as a transitional tool for adult smokers to kick a more noxious habit - Juul's youthful marketing and fruity flavors set it apart and opened up criticism from those who work with kids.
The company, based in San Francisco, has come under fire by scores of school officials and public-health workers, as well as numerous states' attorneys general, who say that the device makes it too easy for kids to get addicted to a powerful drug without realizing that they can't stop without experiencing a nasty withdrawal.
Earlier this year, Parker learned how easy it is for children to gain access to e-cigarettes, whose sale, just like traditional tobacco products, is regulated by the state. In Vermont, no person under 18 may purchase them legally.
Parker assured The Commons local retailers are “very compliant” with the law, and noted many stores that sell cigarettes do not carry vaping products.
“Most people don't want to sell cigarettes to kids,” he said.
So where are kids getting Juul pods and other e-cigarettes?
Online.
On YouTube and Reddit, some enterprising youth have uploaded videos instructing their underage peers on the art of ordering vaping products from online auction retailer eBay. They can then turn a profit by selling to their pals.
Despite age requirements, young people can place an order and wait for a package to arrive.
EBay's official policy is that those wishing to purchase e-cigarettes must be 21 years old, and, “If the recipient is not the buyer, the buyer must make sure that the recipient is at least 21 years old.”
Additionally, eBay claims only “pre-approved sellers” may list e-cigarettes for sale, and sellers must use a shipping service “that will verify, upon delivery, that the buyer or recipient is at least 21 years old.”
This is not how it actually works.
Parker, after researching the Juul pod listings, asserts that eBay's policies are seldom enforced.
Adding to Parker's ire is that in April, the Food and Drug Administration issued a statement, in response to complaints.
The federal agency, which regulates the devices, “contacted eBay to raise concerns over several listings for Juul products on its website. We're thankful for eBay's swift action to remove the listings and voluntarily implement new measures to prevent new listings from being posted to the web retailer's site.”
On the day of the announcement, the eBay listings disappeared.
But soon, they were back up in droves, Parker said.
'Juulie's army' comes in
Parker isn't claiming or implying that any of the eBay sellers have knowingly sold e-cigarettes to minors. but with so many sellers violating eBay's policies, and with eBay's spotty enforcement of its own policies, he says it's easy for youth to purchase Juul pods and other e-cigarettes this way.
To raise awareness of the issue and document the violations on eBay, in May, Parker began taking screenshots of the pages of sellers peddling Juul pods to anyone with a Paypal account.
“There were pages and pages of listings, and some of these sellers had thousands of sales,” said Parker.
Parker and a student intern, Olivia Moore, established “Juulie's Army,” a Facebook page where participants could share their screenshots, with seller information kept anonymous.
Parker also uploaded a short video about the issue onto the West River Valley Thrives's YouTube page. It shows the Leland & Gray Union High School nurse holding a box of confiscated vaping products.
This is where Parker's troubles began.
In mid-October, Parker received two emails, from respective administrators at Facebook and YouTube, with claims that he was engaging in trademark violation.
YouTube also claimed Parker's video was promoting underage vaping, and it portrayed youth “trying Juul.”
“It was so laughable,” Parker said.
“YouTube's claim is that our video portrayed youth trying Juul. The only person in that video is the school nurse,” he noted.
The Facebook complaint read: “We've removed or disabled access to the following content that you posted on Facebook because a third party reported that your offer of goods and/or promotion of the sale of goods infringes on their trademark rights.”
The message included the part of Parker's original post, which they claimed infringed on Juul's trademark through an offer of goods: “Here is another Juul starter kit, with 4 pods, sold on eBay. This was sent in by a contributor from Brattleboro Union [High School]. [...] They found this device for sale on eBay, today, November 2, 2018.”
In other words, to Facebook, Parker pointing out eBay's sale of Juul products meant that he was doing the same, and that by the presence of the Juul logo in the screen shot of the eBay auction he shared, he was infringing on Juul's trademark rights.
How did these things get conflated?
“The only way you could make that complaint was if you hadn't read the material,” or viewed the video, said Parker.
Another possibility, he said, is “Juul wanted our video to go away because it demonstrated their product being available on eBay,” in violation of eBay's policies.
“In a way, it could be a boring story,” admitted Parker.
“The only reason we're documenting any of this is because all the parties” - including the FDA, he noted - “said they fixed this. Not only did they say they fixed this, but they said they'd prevent future listings on their site.”
EBay knows it's a problem, Parker asserted. “The FDA told them, so there's no dispute there. And we keep documenting the same thing - here we go again! What eBay is stating is false, and the truth matters.”
“These guys [at Juul] have millions of dollars, and these are the accidents that are happening? It's just not believable,” said Parker.
The Electronic Frontier Foundation, which, according to its website, is “the leading nonprofit organization defending civil liberties in the digital world,” has a name for the way Juul, via YouTube and Facebook, treated Parker and the non-profits he works with: trademark bullying.
In a 2014 post on EFF's website, “Shedding a Little Sunlight on a Trademark Bully,” Corynne McSherry, the nonprofit's legal director, describes this behavior as “casual censorship, where owners (or their agents) shoot off complaints against any use of their marks, without regard for the consequences.”
“Mindless over-enforcement is unnecessary, burdensome, and feeds a censorship culture,” McSherry said. “It has to stop,” she said, adding that “no one needs to seek permission for every use of a name or logo.”
Juul: 'Our mistake'
In early November, Parker sent a Juul official a letter responding to the YouTube and Facebook complaints.
Regarding the alleged “underage” person in the YouTube video, Parker provided a link to the video and wrote, “As you can see, the only human being in the video is the school nurse, showing some of the Juul pods that were confiscated at a middle/high school in Vermont.”
To Juul's accusation that the Juulie's Army Facebook page infringes on the company's trademark by offering or promoting the sale of goods, Parker replied, “The Brattleboro Area Prevention Coalition is a nonprofit, working to prevent nicotine addiction among young people. We don't sell nicotine. You do.”
Juul backed down. Parker said an official with the company sent him a letter.
“It basically said, 'Our mistake' on both counts. They also sent a 'stand down' email to YouTube and Facebook,” said Parker.
“We think we can now go ahead without any further complications,” he said.
“This gives us some hope that they're just going to leave us alone,” he added.