[Senate Hearing 117-790]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 117-790

                TOXIC MARKETING CLAIMS AND THEIR DANGERS

=======================================================================

                                HEARING

                               before the

 SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, AND DATA SECURITY

                                 of the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             AUGUST 3, 2021

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




                Available online: http://www.govinfo.gov  
                             _________
                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
54-259 PDF               WASHINGTON : 2023 
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
                
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                   MARIA CANTWELL, Washington, Chair
AMY KLOBUCHAR, Minnesota             ROGER WICKER, Mississippi, Ranking
RICHARD BLUMENTHAL, Connecticut      JOHN THUNE, South Dakota
BRIAN SCHATZ, Hawaii                 ROY BLUNT, Missouri
EDWARD MARKEY, Massachusetts         TED CRUZ, Texas
GARY PETERS, Michigan                DEB FISCHER, Nebraska
TAMMY BALDWIN, Wisconsin             JERRY MORAN, Kansas
TAMMY DUCKWORTH, Illinois            DAN SULLIVAN, Alaska
JON TESTER, Montana                  MARSHA BLACKBURN, Tennessee
KYRSTEN SINEMA, Arizona              TODD YOUNG, Indiana
JACKY ROSEN, Nevada                  MIKE LEE, Utah
BEN RAY LUJAN, New Mexico            RON JOHNSON, Wisconsin
JOHN HICKENLOOPER, Colorado          SHELLEY MOORE CAPITO, West 
RAPHAEL WARNOCK, Georgia                 Virginia
                                     RICK SCOTT, Florida
                                     CYNTHIA LUMMIS, Wyoming
                    David Strickland, Staff Director
                 Melissa Porter, Deputy Staff Director
       George Greenwell, Policy Coordinator and Security Manager
                 John Keast, Republican Staff Director
            Crystal Tully, Republican Deputy Staff Director
                      Steven Wall, General Counsel
                                 ------                                

         SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, 
                           AND DATA SECURITY

RICHARD BLUMENTHAL, Connecticut,     MARSHA BLACKBURN, Tennessee, 
    Chair                                Ranking
AMY KLOBUCHAR, Minnesota             JOHN THUNE, South Dakota
BRIAN SCHATZ, Hawaii                 ROY BLUNT, Missouri
EDWARD MARKEY, Massachusetts         JERRY MORAN, Kansas
TAMMY BALDWIN, Wisconsin             MIKE LEE, Utah
BEN RAY LUJAN, New Mexico            TODD YOUNG, Indiana  






















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on August 3, 2021...................................     1
Statement of Senator Blumenthal..................................     1
    Article dated July 7, 2021 entitled, ``Juul: Taking Academic 
      Corruption to a New Level'' by David Dayen.................    54
Statement of Senator Blackburn...................................     3
    Letter dated July 30, 2021 via e-mail to Hon. Maria Cantwell 
      from Katherine E. Rumbaugh,Senior Vice President, U.S. 
      Federal and State Government Affairs, Juul Labs............    49
Statement of Senator Lee.........................................    36
Statement of Senator Markey......................................    44
Statement of Senator Lujan.......................................    46

                               Witnesses

Joshua H. Stein, Attorney General, State of North Carolina.......     5
    Prepared statement...........................................     7
Robert J. Jackler, Professor, Stanford University, Founder, 
  Stanford Research into the Impact of Tobacco Advertising.......    10
    Prepared statement...........................................    12
Ariel Fox Johnson, Senior Counsel, Global Policy, Common Sense 
  Media..........................................................    23
    Prepared statement...........................................    25
Maureen K. Ohlhausen, Former Acting Chair, Federal Trade 
  Commission.....................................................    39
    Prepared statement...........................................    41

                                Appendix

Response to written question submitted to Joshua H. Stein by:
    Hon. Amy Klobuchar...........................................    57
Response to written questions submitted to Ariel Fox Johnson by:
    Hon. Amy Klobuchar...........................................    57
    Hon. Richard Blumenthal......................................    58
    Hon. Cynthia Lummis..........................................    58
    Hon. Marsha Blackburn........................................    59
Response to written questions submitted to Maureen K. Ohlhausen 
  by:
    Hon. Ben Ray Lujan...........................................    60

 
                        TOXIC MARKETING CLAIMS 
                           AND THEIR DANGERS

                              ----------                              


                        TUESDAY, AUGUST 3, 2021

                               U.S. Senate,
      Subcommittee on Consumer Protection, Product 
                         Safety, and Data Security,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:47 p.m., in 
room SR-253, Russell Senate Office Building, Hon. Richard 
Blumenthal, Chairman of the Subcommittee, presiding.
    Present: Senators Blumenthal [presiding], Markey, Lujan, 
Blackburn, and Lee.

         OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, 
                 U.S. SENATOR FROM CONNECTICUT

    Senator Blumenthal. Welcome, everyone, to this hearing of 
the Subcommittee on Consumer Protection. I thank everyone for 
being here in person and remotely, most especially our 
witnesses, to a hearing that is entitled, ``Toxic Marketing 
Claims and Their Dangers.'' I want to thank Ranking Member 
Blackburn for her cooperation and her very important 
contributions to this hearing. And again, my thanks to the 
witnesses. But I think we all know why we are here.
    I personally have seen this movie before. I sued Big 
Tobacco and I know how the movie ends, at least in the case of 
Big Tobacco, not well. And we are watching the sequel, which 
maybe is entitled Big Tobacco will stop at nothing, the hearing 
is very reminiscent of both the tactics and the strategy that 
Big Tobacco used in marketing its products to children and 
teens. And the hearing is highly because the FDA is engaged in 
its remarket review of Juul. There is no way, in my view, that 
the FDA can approve this product in good conscience, given its 
deceptive marketing practices and its pitches and promotions to 
children. There is no way that it can condone those practices, 
which would be the effect of its approving Juul on the market. 
It should be condemning this product not permitting its 
continued practices that will addict another generation to 
nicotine.
    When I think of toxic marketing, nothing comes to mind more 
readily than Big Tobacco, and the simple fact is that Juul has 
taken a page from Big Tobacco's playbook. Behind me is a 
character that was banned under the settlement that we reached 
with Big Tobacco, Joe Camel, known by those companies to be 
appealing to children. What we have next to it is Juul's 
equally deceptive and pernicious pitch to another generation. 
And the glamorization and glorification of tobacco use, making 
it cool, hip, appealing to kids, we are seeing again now in 
Juul. And we are seeing also the attempt to lie to a Government 
agency. Big Tobacco came before Congress. Its executives raised 
their right hand and they denied that their product was 
addictive, that it caused cancer, that it had any bad effects.
    There was a suggestion there that perhaps those 
representatives of the industry should be prosecuted for 
perjury. Juul maybe has been smarter. It has declined an 
invitation to be here today. I regret that it has. But 
certainly in its representations to the FDA, the question of 
truthfulness is very much on our minds. In 2015, Juul launched 
on the market without review by the FDA due to years of 
regulatory delay its product that was even more addictive than 
tobacco use. It was sleeker. It had a stronger nicotine 
concentration, and it had the most targeted campaign on the 
market. Why was it different in this market? Well, Juul's 
founders, James Monsees and Adam Bowen studied Big Tobacco. In 
2015, Monsees said, in regard to Big Tobacco's advertising, and 
I am quoting, ``it became a very intriguing space for us to 
investigate because we had so much information that you 
wouldn't normally be able to get in most industries and we were 
able to catch up, right, to a huge, huge industry in no time, 
and then we started building prototypes.''
    We can see the similarities in that marketing in the use of 
color and imaging and claims that mirror the pitches made by 
Joe Camel and the Marlboro Man. Frankly, they seem kind of 
quaint compared to Juul because Juul has opened an entirely new 
front of marketing, equally deceptive, but modernized. Social 
media, influencers, Instagram hashtags. Appealing to different 
platforms, but the same audience, teens and children. In some 
ways even more pernicious because it permits targeting more 
specifically and even more perniciously.
    The unfettered use of social media marketing, and we have 
examples of it, so do you, shows these products to be not only 
cool and hip, but also the effort is to show them to be safe. 
And their subsequent work to get their products in people's--
young people's hands at events, at promotions is also 
reminiscent of Big Tobacco. E-cigarette use as a result among 
middle schoolers and high schoolers began to increase almost as 
soon as Juul entered the market, and in 2017 it was a stunning 
78 percent increase in the number of high schoolers using e-
cigarettes. The market there was enticing for Big Tobacco. And 
lo and behold, in 2018, Altria, the owner of Philip Morris 
International and Marlboro, purchased Juul.
    Unsurprisingly, under the guidance of Altria, Juul work to 
deceive consumers and the Federal Government. It continues 
today. Just this past April, astonishingly, Juul spent $51,000 
to buy an entire issue of the Journal of American Health 
Behavior, publishing 11 studies touting the manufacturer's 
completely unsupported claims that Juul could serve as a safe 
alternative to smoking. Ironically, Juul's CEO, K.C. 
Crosthwaite was invited to testify here very specifically but 
declined citing a desire to, ``defer to the science and seek to 
preserve the integrity of an administrative evidence based 
process,'' as the FDA reviews their product eligibility for the 
market.
    Make no mistake, Juul cares nothing about preserving the 
integrity of science and evidence. You don't have to listen to 
me. All you have to do is look at their ads and read the 
American Journal of Health Behavior's 11 studies. It is yet 
another recycled marketing tactic of Big Tobacco tactics and 
strategy clearly repeated from that playbook. And it is an 
attempt to deceive new consumers, current smokers, and others, 
as well as the Federal Government of the product safety. So 
finally, let me just say, the evidence clearly warrants denial 
of access to the market by the FDA between now and September 9. 
My hope is that the Attorneys General across the country, we 
are going to hear from one of them today, whose efforts to hold 
Juul accountable will succeed. Juul has already caused so much 
damage in the addiction that it has successfully accomplished.
    Addiction to adults and teens alike. But those efforts can 
achieve only so much. The FTC as well as the FDA has a 
responsibility here, and I call on the FTC to investigate 
unfair and deceptive marketing practices of Juul and other e-
cigarette manufacturers and conduct enforcement where 
appropriate. Marketing doesn't exist in a vacuum. The youth e-
cigarette epidemic created by Juul, and others is a prime 
example of the deadly consequences of unrestrained toxic 
marketing.
    Enough is enough. We need to change the outcome of this 
movie before the sequel produces the same ending. I look 
forward to the discussion today and thank you all for being 
here. And I turn to the Ranking Member.

              STATEMENT OF HON. MARSHA BLACKBURN, 
                  U.S. SENATOR FROM TENNESSEE

    Senator Blackburn. Thank you, Mr. Chairman, and welcome to 
our witnesses. Thank you for joining us for the hearing. I am 
really so pleased that we have this hearing today. And Senator 
Blumenthal talked a little bit about what the work he had done 
in the tobacco lawsuits. Well before those took place, and as 
they were beginning to take place in the 80s, I was Chairman of 
the Board of the American Lung Association of Middle Tennessee. 
And we were hard at work to make certain that we were 
conducting the smoking cessation programs, that we were looking 
at some of the reasons that people chose to smoke.
    And one of those we found was the influences that 
advertising and things had on children. We developed a 
children's school health curriculum program and trained 
teachers how to teach, working with parents, what to look out 
for, dangers of secondhand smoke, those things. But you realize 
the power of advertising. And I went back through to look at 
some of the iconic ads and things that have made impressions.
    In the 1950s, Volkswagen had an ad that was simply a 
Volkswagen, and the words ``think small.'' That was it. 
Everybody remembers that. In the 80s, we had the Energizer 
Bunny, keeps going and going and going. Nashville is a great ad 
town. We all remember the Budweiser frogs that would say 
Budweiser. Those came about in the 90s. Everybody remembers the 
Wendy's, where's the beef? And these are ads that stay with 
you. Those messages stay with you. So now we look at the 
meteoric rise of the Internet and social media, advertising has 
taken on other forms. Kids go to YouTube and watch videos like 
Ryan's World, which is a 9-year old boy who reviews toys and 
encourages kids to buy those toys through his Amazon store. And 
Tik Tok lures kids to keep watching through the use of 
algorithms and use, send them targeted content and collect 
their data, which to me is atrocious, but they collect the data 
for potentially nefarious purposes.
    Children, more than anyone, have a hard time identifying 
when content is actually an advertisement. I have this 
discussion with my grandsons regularly. According to the 
American Psychological Association, kids younger than four and 
five aren't really able to distinguish programming from 
commercials. And until age of seven or eight, most kids don't 
recognize that commercials are actually selling to them. Yet 
this hasn't stopped companies from viewing kids as a lucrative 
market.
    By one estimate, advertisers spend more than $12 billion 
per year on ads to children, and kids view more than 40,000 
commercials annually. The ad revenue for big tech companies in 
the U.S. is soaring. Twitter and Amazon's ad revenues were up 
nearly 90 percent from last year, while ad sales for Snapchat, 
a platform frequented by teens, are up more than 118 percent. 
And platforms like Instagram, which Facebook owns, developed a 
messenger for Kids app last year and recently announced plans 
to create an Instagram for Kids app, which was challenged by 40 
states, including Tennessee, and I think you and me.
    We know that advertising content can be harmful to kids and 
teens. It can expose them to weight loss pills, alcohol, and 
other adult substances, or even pave the way for bullying and 
risk seeking behavior. For example, Pinterest recently banned 
all weight loss ads on its site due to concerns that eating 
disorders had increased because of COVID-19 related weight gain 
content.
    And in just a month ago, police arrested seven men in 
northeast Tennessee for sex trafficking after they responded to 
decoy advertisements placed on various websites. With all the 
new ways that marketing reaches children, we must stay vigilant 
to ensure the law keeps pace with changes in technology. Among 
other things, Congress should revisit the Children's Online 
Privacy Protection Act, or COPPA, to look at issues like how 
parents give consent to kids' online activities and companies 
that collect voice recordings of kids and teens.
    We also need to craft solutions, including a national 
privacy law, to crack down on big tech companies that make a 
business out of marketing to children. I wanted to touch 
briefly on the issue of e-cigarette use by kids and teens, 
since I know that is of great interest to the Chairman and some 
of my other colleagues on the Committee. I too am greatly 
concerned by the idea that products such as e-cigarettes could 
be marketed to youth, as well as the large percentage of middle 
and high school students who report using these products.
    That said, I am optimistic about changes put in place 
during the Trump Administration that seem to be yielding 
results. For example, since Congress passed laws changing the 
legal age for smoking and vaping to age 21, there has been a 
one-third drop in high school use of e-cigarettes, and the FDA 
has taken steps to remove flavored e-vapor products from the 
market and halt to e-vapor marketing toward minors.
    I look forward to continuing to work with members of this 
committee on these important issues, and also to hearing from 
our witnesses today. Thank you, Mr. Chairman.
    Senator Blumenthal. Thank you very, very much, Senator 
Blackburn. We are really honored and pleased to have with us 
very qualified witnesses today. Josh Stein, Attorney General of 
North Carolina. Served in the North Carolina--has served as 
North Carolina's Attorney General since January 1, 2017. Prior 
to serving as Attorney General, he was a North Carolina State 
Senator and a Senior Deputy Attorney General for consumer 
protection within the North Carolina Department of Justice. 
Stein is a graduate of Dartmouth College, Harvard Law School, 
and Harvard's Kennedy School of Government.
    Dr. Robert Jackler, who is in person, is a professor at 
Stanford University. He is at the School of Medicine and is a 
practicing surgeon. He is the Founder and Principal 
Investigator of an interdisciplinary research group, Stanford 
Research Into the Impact of Tobacco Advertising, or SRITA, 
which conducts research into the promotional activities of the 
tobacco industry.
    Ms. Ariel Fox Johnson, also here in person, is Senior 
Counsel for Global Policy at Common Sense Media. She is Senior 
Counsel for Global Policy and focuses on promoting robust 
consumer protections in the online world. She is a graduate of 
Harvard College and Law School. Prior to joining Common Sense, 
she worked on media, privacy, and intellectual property matters 
at corporate law firms.
    Maureen Ohlhausen is Former Chair of the Federal Trade 
Commission, Acting Chair. Maureen Ohlhausen Chairs the Baker 
Botts Global Antitrust Competition Practice, focusing on 
antitrust, privacy, data security, and consumer protection 
investigations. Prior to her role as Chair, she led the FTC as 
Acting Chairman and Commissioner. And prior to that, she led 
the FTC's Access--Internet Access Task Force. And she joins us 
remotely as well.
    We will begin with testimony from Attorney General Stein.

STATEMENT OF JOSHUA H. STEIN, ATTORNEY GENERAL, STATE OF NORTH 
                            CAROLINA

    Mr. Stein. Good afternoon, Senator Blumenthal, Senator 
Blackburn, and any other distinguished members of the 
Subcommittee. I am North Carolina Attorney General Josh Stein. 
As one long interested in the topic of today's hearing, I am 
very grateful for your giving it this level of attention. The 
toxic marketing claims used to peddle e-cigarettes to America's 
young people have had a devastating effect.
    One story, in 2018, a 16 year old kid would wake up in his 
bed in Durham, North Carolina, with his hand wrapped around his 
Juul device under the pillow. The very first thing he did when 
he woke up, take a puff. Then he would inhale more while 
getting ready for school, eating breakfast, driving to school. 
He would use it between classes, in the bathroom, with friends 
in his car, after practice, after dinner, and while he was 
working on his homework. In fact, the only time he did not use 
the product was when he was sleeping.
    Sadly, this young man's story is not unique. It has become 
the life of many high schoolers in North Carolina and around 
the country. How did we get here? Slick advertising campaigns 
on social media that highlighted kid friendly dessert and fruit 
flavors delivered in a sleek, concealable USB device. It has 
been a tragic development that is undone years of hard work. In 
the late 1990s, nearly 30 percent of teens used tobacco 
products. By 2017, that number had dropped to 5 percent of high 
schoolers. This remarkable public health victory was the result 
of the tobacco master settlement agreement, thank you, Senator 
Blumenthal, and the diligent efforts of public health workers 
over many years.
    But by 2019, those hard won gains had evaporated like a 
puff of smoke. 24 percent of high school students, 7 percent of 
middle school students now use tobacco products, representing 
1.5 million new teen users. In 2018, my office launched an 
investigation into Juul. Juul's marketing tactics were 
insidious and effective. Juul became so pervasive among young 
people that the high school bathroom had become known as the 
Juul room. By 2018, Juul had cornered 75 percent of the e-
cigarette market. After my office's investigation, I filed in 
2019 the first State lawsuit against Juul, alleging that Juul 
designed, marketed, and sold its e-cigs in a manner that 
targeted young people.
    A few weeks ago, on June 18, North Carolina became the 
first state in the Nation to hold Juul accountable. My office 
entered a Consent Judgment that forces Juul to not sell e-cigs 
in any flavor not approved by the FDA, abandon its marketing to 
young people, and stop all social media and influence or 
advertising, use state-of-the-art age verification systems, 
both online and at retail, pay North Carolina $40 million to 
help the tens of thousands of young people addicted quit e-
cigarettes, and provide for a document depository to ensure 
that nothing is swept under the rug. My hope is that this 
agreement keeps Juul's devices out of kids' hands, its chemical 
aerosol out of their lungs, and its nicotine from poisoning and 
addicting their brains.
    I am extremely proud of my office's victory over Juul here 
in North Carolina, as well as a number of other e-cig companies 
like Juul. We have driven out of State a number of them that 
had been selling and advertising to kids. But there are still 
many others operating around the Nation, and there are dozens 
of other nicotine based products like disposable cigs, nicotine 
patches, and noncombustible tobacco products that use similar 
tactics. Candidly, the game of whack a mole that Attorneys 
General are playing is untenable.
    We in the states need the help of our Federal partners to 
protect America's youth, to prohibit nicotine manufacturers and 
retailers from marketing and selling to young people, using 
youth friendly dessert fruit and mint and menthol flavors, and 
developing high concentrations of nicotine that accelerate a 
person's dependance.
    I have already written the FDA urging it to protect kids by 
imposing these types of restrictions on the entire industry, 
and a similar multi-state effort is underway. Members of the 
subcommittee, I ask that you do all in your power to encourage 
the FDA to use its existing authority to protect kids. It is 
not too late to turn around this youth vaping epidemic and keep 
kids safe, but only if the states and the Federal Government 
effectively work together.
    Thank you for your attention to this most important issue.
    [The prepared statement of Mr. Stein follows:]

       Prepared Statement of Joshua H. Stein, Attorney General, 
                        State of North Carolina
    Senator Blumenthal, Senator Blackburn, and distinguished members of 
the subcommittee:

    Thank you for inviting me to testify at this hearing on ``Toxic 
Marketing Claims and Their Dangers,'' a topic that has long been of 
interest to me and one that I am grateful is getting the attention that 
I believe it needs. Toxic marketing claims are a concerning blight on 
our efforts to protect consumers, but in recent years, the tactics used 
to market e-cigarettes and other non-combustible nicotine products have 
targeted a particularly vulnerable population among us: youth.
    I want to start by framing the issue we are discussing today. This 
is the story of one of North Carolina's own. In 2018, a 16 year old kid 
would wake up in his bed in Durham, North Carolina, with his hand 
wrapped around his JUUL device. The very first thing he did when he 
woke up: Take a puff. Then he would take a few more puffs while getting 
ready for school, eating breakfast, and going to school. Throughout the 
day, he would continue to take puffs from the e-cigarette product. He 
would use it between classes in the bathroom, with friends in his car. 
He would use it after sports practice, after dinner, while he was 
working on his homework. He would routinely sleep with it under his 
pillow. In fact, the only time he said he did not use the product was 
when he was sleeping.
    This story is not unique. This is the life of many high schoolers 
in our State--and indeed, throughout the country.
    I came to this issue from a very personal place. A few years ago, 
both my sons were in high school, and my daughter in middle school. And 
I learned about the resurgence of rampant teen dependence on nicotine 
from them and from my friends' stories about their kids. Everyone was 
unanimous that the kid-friendly dessert-and fruit-flavored products 
made to look like sleek, concealable USB devices and marketed through 
slick advertising campaigns on social media with young, hyper-cool 
models and influencers using e-cigarette devices and having the time of 
their lives were taking our Nation's young people by storm and creating 
a new generation of young people dependent on nicotine.
I. The History of Tobacco Use Among Youth
    In 1992, 17.2 percent of high school seniors reported having smoked 
daily during the past 30 days. By 1997, that number had increased to 
24.6 percent. In other words, by 1997, nearly one-quarter of high-
school seniors were habitual cigarette smokers.\1\
---------------------------------------------------------------------------
    \1\ Pampel, F., Aguilar, J., Changes in Youth Smoking, 1976-2002: A 
Time-Series Analysis, Youth Soc. 2008; 39(4): 453-479, available at 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2696267/.
---------------------------------------------------------------------------
    We have known for decades that virtually all cigarette smoking 
begins before 18 years of age.\2\ Virtually no initiation of cigarette 
smoking actually occurs after 26 years of age. Initiation of cigarette 
smoking often occurs early in adolescence.\3\
---------------------------------------------------------------------------
    \2\ U.S. Department of Health and Human Services, Public Health 
Service, Centers for Disease Control and Prevention, National Center 
for Chronic Disease Prevention and Health Promotion, Office on Smoking 
and Health, Preventing Tobacco Use Among Young People: A Report of the 
Surgeon General (1994).
    \3\ The Health Consequences of Smoking--50 Years of Progress: A 
Report of the Surgeon General, Patterns of Tobacco Use Among U.S. 
Youth, Young Adults, and Adults, available at https://
www.ncbi.nlm.nih.gov/books/NBK294302/.
---------------------------------------------------------------------------
    Young people in the 1970s, 1980s, and 1990s did not discover and 
adopt cigarette-smoking on their own. They were targeted by some of 
America's biggest companies. A 1981 research report by Phillip Morris 
confirmed that it ``is important to know as much as possible about 
teenage smoking patterns and attitudes. Today's teenager is tomorrow's 
potential customer, and the overwhelming majority of smokers first 
begin to smoke while still in their teens.'' \4\ Cigarette 
manufacturers created cartoon figures, employed tactics that portrayed 
cigarette use as glamorous and cool, and promoted tobacco products in a 
variety of flavors that were attractive to youth. Joe Camel, the 
Marlboro Man, and Willie the KOOL Penguin were all household names.
---------------------------------------------------------------------------
    \4\ Johnston ME, Young Smokers Prevalence Trends, Implications and 
Related Demographic Trends (Mar. 31, 1981); Philip Morris (PM) Bates 
1000390803.
---------------------------------------------------------------------------
    In November 1998, the attorneys general of 46 states, five U.S. 
territories, and DC entered into an agreement with the four largest 
cigarette manufacturers in the United States. This Master Settlement 
Agreement forbade the cigarette manufactures from targeting youth by 
banning cartoons, transit advertising, most forms of outdoor 
advertising, product placement in media, branded merchandise, most free 
product samples, and most sponsorships.\5\
---------------------------------------------------------------------------
    \5\ Master Settlement Agreement, available at https://
publichealthlawcenter.org/sites/default/files/resources/master-
settlement-agreement.pdf.
---------------------------------------------------------------------------
    The marketing restrictions demanded by the MSA, together with 
intensive public and private efforts--including legal restrictions, 
workplace policies, public-education campaigns, and other public 
initiatives--powered a steep decline in tobacco use among the public as 
a whole, including youth. By 2017, the prevalence of smoking had 
declined by approximately 67 percent from 1965, and only 14 percent of 
adults and approximately 5 percent of high-school students smoked 
cigarettes.\6\ It was one of the most successful public health 
victories of the last quarter century.
---------------------------------------------------------------------------
    \6\ American Cancer Society, Cigarette Smoking at Record Low Among 
American Adults (Nov. 9, 2018), available at https://www.cancer.org/
latest-news/cigarette-smoking-at-record-low-among-american-adults.html.
---------------------------------------------------------------------------
    By 2019, those hard-won gains had evaporated like a puff of smoke. 
In 2018, there were 1.5 million new underage e-cigarette users. Now, 
23.6 percent of high school students and 6.7 percent of middle school 
students use tobacco products.
II. My Office's Lawsuit Against JUUL
    In 2018, my Office launched an investigation into one e-cigarette 
company in particular--a pioneer in the industry that experienced rapid 
growth and market dominance within just two years.
    I learned from friends that their high-school-aged children were in 
the midst of the throes of nicotine dependency: they were experiencing 
depression, a sharp decline in academic performance, academic and 
social difficulties at school that required them to switch schools, and 
eventually, dependency that required medical intervention. Through my 
conversations with other students, parents, and educators, I further 
learned that e-cigarette use and the resulting nicotine dependency were 
widespread problems in classrooms and at home.
    JUUL's marketing tactics seemed particularly insidious: While JUULs 
and other e-cigarettes seemed ubiquitous in schools--so much so that 
school bathrooms were referred to as ``JUUL rooms''--most adults who 
did not have frequent interactions with young people remained unaware 
of the product or its popularity. It seemed as though JUUL and similar 
e-cigarette companies had targeted its products to young people 
specifically, while gaining little traction among adults.
    After my Office's investigation, in 2019, I filed the first state 
lawsuit against JUUL alleging that JUUL designed, marketed, and sold 
its e-cigarette products in a manner that targeted young people, 
including teens. This was evident through JUUL's product design: it was 
sleek, easily concealable, looked like a USB key, and was deemed the 
``iPhone'' of e-cigarettes.\7\ JUUL also targeted young people by 
infusing its nicotine-filled vaping liquids with flavors that appealed 
to youth--flavors like mango, coco mint, cool cucumber, creme brulee, 
and fruit medley.\8\ JUUL also targeted young people by using a 
patented salt formula that reduced the bitterness of the product and 
harshness on the user's throat. In fact, in the instructions JUUL 
included in its starter kit, JUUL exhorted new users to not be 
discouraged if they found their first puffs too harsh and unappealing; 
new users just needed to try enough to find their ``perfect puff.'' \9\ 
JUUL even built an easter egg into its device called ``Party Mode,'' 
which allowed users to take a puff from their device and shake the JUUL 
device, creating a kaleidoscope of flashing lights.
---------------------------------------------------------------------------
    \7\ Kaplan, S., Juul Is Fighting to Keep Its E-Cigarettes on the 
U.S. Market, The New York Times (July 5, 2021), available at https://
www.nytimes.com/2021/07/05/health/juul-vaping-fda.html.
    \8\ Muthumalage, T., Lamb, T., Friedman, M.R. et al., E-cigarette 
flavored pods induce inflammation, epithelial barrier dysfunction, and 
DNA damage in lung epithelial cells and monocytes, Sci Rep 9, 19035 
(2019), available at https://doi.org/10.1038/s41598-019-51643-6.
    \9\ See, e.g., https://twitter.com/juulvapor/status/
1050816470350000129.
---------------------------------------------------------------------------
    JUUL's marketing decisions, which were a result of deliberate 
planning and forethought, also targeted youth. The company launched 
itself through the now-infamous Vaporized! campaign, which was focused 
on selling a lifestyle of being young, cool, popular, attractive, 
confident, and modern. The marketing campaign focused on digital and 
print advertising that featured young, attractive, hyper-cool models at 
parties, hanging out with each other and having fun. JUUL then took 
this campaign on a roadshow to create buzz about the product by 
inviting cool, youthful attendees to attend parties at which JUUL gave 
away its product for free, hiring ``brand ambassadors'' to help host 
these events, and achieving viral participation and generating 
amplifying buzz on social media.
    This early marketing took on a life of its own. Even after JUUL 
pulled its Vaporized! campaign, the damage had been done: sales rose 
700 percent in JUUL's first year on the market.\10\ The second year, 
sales ballooned 641 percent over sales in the first year.\11\ By 2018, 
JUUL had cornered 75 percent of the e-cigarette market and was the 
standard-bearer for the industry.\12\
---------------------------------------------------------------------------
    \10\ Brodwin, E., The precarious path of e-cig startup Juul: From 
Silicon Valley darling to $24 billion behemoth under criminal 
investigation, Business Insider (Oct. 31, 2019), available at https://
www.businessinsider.com/juul-timeline-from-startup-to-tobacco-company-
challenges-bans
-2019-9.
    \11\ Center for Disease Control and Prevention, Press Release, 
Sales of JUUL e-cigarettes skyrocket, posing danger to youth (Oct. 2, 
2018), available at https://www.cdc.gov/media/releases/2018/p1002-e-
Cigarettes-sales-danger-youth.html.
    \12\ Kaplan, S., Juul Is Fighting to Keep Its E-Cigarettes on the 
U.S. Market, The New York Times (July 5, 2021), available at https://
www.nytimes.com/2021/07/05/health/juul-vaping-fda.html.
---------------------------------------------------------------------------
    On June 28, 2021, North Carolina became the first state in the 
Nation to hold JUUL accountable in our fight against the teen vaping 
epidemic. My Office entered a consent judgment with JUUL that extracts 
commitments from JUUL across five different areas.
    First, JUUL will no longer be able to sell e-cigarette products in 
any flavor not approved by the FDA. This is critical to ensuring that 
it cannot continue to market to youth by producing products in flavors 
that are attractive to children.
    Second, JUUL will have to change the way it markets its products. 
It will abandon any marketing strategies and content that appeals to 
young people. All models must be at least 35 years old. It will stop 
using social media advertising, influencer advertising, outdoor 
advertising near schools, and it will stop sponsoring cultural events 
or concerns. JUUL will also not make any health or therapeutic claims 
in its advertising or marketing materials unless specifically 
authorized by the FDA.
    Third, JUUL is now required to make major changes to the way it 
sells its products, both online and at retail. It must now use state-
of-the-art independent age verification systems to ensure that 
customers who purchase its products online are of legal age. JUUL will 
also have to make sure its third-party sales partners sell only to 
customers who are of legal age by instituting point-of-sale 
verification systems that use bar codes to verify IDs and by using a 
retailer-compliance program that will require JUUL to hire young adults 
to perform mystery shopping at approximately 1,000 stores per year with 
sanctions for any retailer found to be in violation.
    Fourth, in addition to these important conduct-related provisions, 
JUUL has agreed to pay North Carolina $40 million. These funds will be 
used for proven programs to help youth quit e-cigarettes and to prevent 
youth from using e-cigarettes. These funds will make a meaningful 
difference in the lives of thousands of North Carolina teens who are 
struggling with e-cigarette dependence.
    Finally, JUUL will provide for a North Carolina document depository 
at a public university where the public can access JUUL's documents 
that we have secured through our litigation. We hope that this 
transparency will ensure that nothing is swept under the rug involving 
JUUL's conduct and that it will help prevent another youth epidemic 
from being created again.
    My hope is that with this consent judgment, we will be able to keep 
this nicotine delivery device out of kids' hands, keep its chemical 
vapor out of their lungs, and keep its nicotine from poisoning and 
addicting their brains.
III. Forging a Pathway Forward
    I am very proud of what my Office has been able to achieve in our 
lawsuit against JUUL. We have secured commitments from JUUL--backed by 
threat of court sanction--to stop marketing to youth, to stop using 
images or models that would attract youth, to stop marketing on 
channels popular among youth, to stop marketing flavors that are 
attractive to youth, to strengthen online age verification procedures 
so that youth cannot buy JUUL products online, and to get serious about 
ensuring that retailers are following the law to keep these nicotine 
products out of the hands of youth. And we have been able to secure 
monetary commitments from JUUL that we will use to help people who are 
already dependent on JUUL products and to ensure that we stem the tide 
of youth dependence.
    But, quite candidly, this game of whack-a-mole is untenable.
    The problem of unfair or deceptive marketing of e-cigarette and 
other tobacco products requires a solution that combines both 
regulation and enforcement. And we in States need the assistance of our 
Federal partners.
    We need our Federal partners to help regulate the industry at 
large. We need industry-wide standards to prohibit manufacturers and 
retailers of nicotine products from marketing to youth. We need 
industry-wide standards to prohibit manufacturers and retailers of 
nicotine products from being able to sell products in youth-friendly 
dessert-and fruit-flavors like bubblegum, mango, mint, and menthol. We 
need industry-wide standards to prohibit manufacturers and retailers of 
nicotine products from being able to sell products in strong nicotine 
concentrations that tend to accelerate dependence, particularly among 
youth. We need our Federal regulatory partners to help us make clear, 
in no uncertain terms, that marketing nicotine products to youth is 
impermissible. This is why I am leading a multistate effort to persuade 
the FDA to impose these types of restrictions on all companies 
manufacturing and selling nicotine products in the United States.
    And we need our Federal partners to join us in driving home the 
message that marketing nicotine products to youth will not be tolerated 
by helping us enforce existing consumer protections. One of the biggest 
differences between the combustible cigarette market in the 1990s, when 
the MSA was entered, and the nicotine market now is that the nicotine 
market is no longer controlled by four companies. While I am proud of 
our work against JUUL, there are many companies just like JUUL out 
there, using the same business model and marketing tactics. While my 
Office has taken action against several of them and driven them out of 
North Carolina, there are still others operating in our State and 
others. And there are dozens of other companies that manufacture and 
sell other nicotine products, like disposable e-cigarettes, nicotine 
pouches, and non-combustible tobacco products, using the same business 
model and marketing tactics. The states cannot do all this work alone 
and need the help of the Federal government, just as the Federal 
government needs the states. We ask that the FTC to enforce existing 
Federal consumer protection laws by investigating the actions of e-
cigarette and other nicotine manufacturers and retailers and their 
marketing practices that target youth.
    We have done this before. When faced with an epidemic of teen 
tobacco use, we have come together, pushed back, and made great 
progress in reversing that trend. We can do it again. All we need is a 
unified commitment by the states and our Federal partners to use the 
tools available to us to achieve this result. I am confident that using 
this whole-of-government approach, we can, once again, curtail the 
effects of nicotine dependence on our youth.
    Thank you again for inviting me to testify today. I look forward to 
your questions.

    Senator Blumenthal. Thank you, Attorney General Stein. And 
you have good reason to be proud of the work done by your 
office, and I think your plea to us in the Congress is very, 
very well taken. It does require a partnership. And we are 
going to turn now to Dr. Jackler.

STATEMENT OF ROBERT K. JACKLER, PROFESSOR, STANFORD UNIVERSITY, 
     FOUNDER, STANFORD RESEARCH INTO THE IMPACT OF TOBACCO 
                          ADVERTISING

    Dr. Jackler. Thank you, Senator Blumenthal and Blackburn, 
for inviting me here today. I am really honored to follow AG 
Stein. While the accomplishments in North Carolina Juul 
settlement are a good start, and he and his team certainly 
deserve our appreciation, their settlement covers only a single 
brand, in a single state, and in a limited fashion. One 
settlement alone cannot undo the lasting impact of what Juul's 
design and marketing have done.
    America's youth remain drawn by Juul's stealthiness, its 
reputation for coolness, and its mentholated minty flavor, the 
high strength nicotine that hooks them. Due to the company's 
actions and inactions, the brand has created a durable teen 
identity and is too tarnished, in my opinion, to remain on the 
market. Clearly, the lessons learned from the Juul fiasco are 
important, but the issue is much broader. Faced with declining 
cigarette sales, all major tobacco companies are adding e-
cigarettes, heated tobacco, and oral nicotine pouches to their 
product lines. They come in flavors that appeal to kids and 
deliver nicotine at levels that would make the Marlboro Man 
envious.
    A comprehensive nationwide regulatory framework spanning 
all of these emerging tobacco products is needed. You know, I 
suspect that most Americans think that the worst excesses of 
tobacco late in the 20th century, when countless ads glorified 
glamorous and sexy cigarettes and reassured a worried public 
that more doctors smoke Camels than any other brand. While 
today's tobacco companies loudly claim that they advertise 
ethically, my in-depth study of tobacco marketing makes clear 
that they continue to use the same methods as they used before. 
Ever since the tobacco industry started advertising, it is 
linked what it does to popular culture. During wartime, 
cigarettes were associated with victory. During women's lib, 
you have come a long way, baby.
    And today's tobacco products are marketed as natural and 
organic, even though they are equally deadly. As soon as COVID 
arrived, tobacco marketers offered free hand sanitizers with 
their purchase, gave tobacco branded face masks, and use COVID-
themed slogans. You know, tobacco advertising has long been 
regulated by the Federal Government, since the 1920s, with a 
series of actions by Congress, by the FTC, and the FDA. In 
1970, Congress banned tobacco advertising from broadcast media, 
which at that time was just TV and radio.
    The legislators of those days could not have foreseen that 
online social media would come to dominate mass media, 
especially among American youth. Facebook, Instagram and 
Twitter are widely exported--exploited, excuse me, by tobacco 
marketers. Once a company makes a product a teen fad, kids take 
over and promote it for them. So based upon a clear analogy to 
the 1970 radio TV ban, there is a strong justification to 
eliminate all tobacco marketing from social media. So up until 
1964, tobacco ads featured endorsements by movie stars and 
heroes, and yes, even U.S. Senators.
    Tobacco marketers made extensive use of influencers today 
who are social media stars with vast online followings, often 
teen idols. Once again, ample precedent exists to end this 
practice. So flavored tobacco, including menthol, is a major 
draw for youth. In 2020, Congress extended the ban on flavored 
cigarettes to include only pod type e-cigarettes like Juul. But 
such a narrowly focused ban is doomed to fail because the 
industry simply innovates around it. So predictably, Puff Bar 
and countless other sweetened, fruity Chinese made disposable 
cigarettes soon flooded the American market.
    To protect youth, it is so important all flavors, including 
menthol, should be banned from all tobacco products. So Federal 
law defines a tobacco product as derived from any part of a 
tobacco plant. With a mandatory FDA deadline looming, as we 
heard from Senator Blumenthal, marketers introduced a series of 
tobacco-free brands, claiming they had only synthetic nicotine 
and thus were exempt from Federal regulation and even tobacco 
taxation. These brands are sold on major online stores, 
including Amazon, even to teenagers. And despite their policy 
prohibiting all tobacco sales, we see it on target.com, these 
things are breaking through because it is not being picked up 
by their filtering, if you will, for tobacco products.
    In July 2020, the FDA ordered market leader Puff Bar to 
cease sales as it hadn't been approved. So what happened? 
Shortly thereafter Puff Bar resumed sales, and it is now made 
of synthetic nicotine and claims that it is immune from FDA 
regulations. So logically, if it isn't tobacco, the nicotine 
products like this are unapproved drugs, and the FDA should 
have clear authority to remove them all from the market.
    As a matter of public health policy, protecting teens from 
nicotine addiction is of the utmost importance. Almost all 
tobacco use begins during teen years. Very few 40 year olds 
say, ``I think I am going to start smoking today.'' After all, 
the single most effective means of reducing smoking in the 
adult population is to keep kids from becoming addicted in the 
first place.
    We need comprehensive regulation, and it should encompass 
advertising, flavors, and nicotine. I thank you.
    [The prepared statement of Dr. Jackler follows:]

Brief Biography of Robert K. Jackler, MD:
    Dr. Jackler is a professor at the Stanford University School of 
Medicine and is a practicing surgeon. He is the founder and principal 
investigator of an interdisciplinary research group (Stanford Research 
Into The Impact of Tobacco Advertising or SRITA) which conducts 
research into the promotional activities of the tobacco industry. SRITA 
collected 56,600 original tobacco advertisements which were donated to 
the National Museum of American History of the Smithsonian Institution. 
A public exhibit at NMAH drawn from this collection opened in April 
2019. SRITA maintains an extensive online tobacco advertising research 
database (tobacco.stanford.edu) which has over 813,000 unique users.
    As an academic research program, SRITA scholars conduct a wide 
spectrum of research into the promotional behaviors of the tobacco 
industry. SRITA focuses upon original scholarship utilizing the unique 
resource of our advertising collection. Our early academic focus was 
primarily an historical study of advertisements from the 20th century. 
In recent years, our research has focused upon the design and marketing 
of emerging tobacco products such as e-cigarettes (e.g., JUUL), heated 
tobacco (e.g., IQOS), and novel nicotine delivery systems. Our research 
is primarily designed to provide scientific data and analysis to inform 
regulators and legislators.
                         Synopsis of Opinions:
Today's Tobacco Advertising Conveys the Same Messages as it Did in the 
        1950s:
    I suspect that most Americans think that the worst excesses of 
tobacco marketing lay in the 20th century when countless ads glorified 
smoking as glamorous and sexy and a worried public was reassured that 
``More Doctors Smoke Camels.'' While the tobacco industry loudly claims 
they advertise ethically today, my in-depth study of tobacco 
advertising makes it clear that they still convey the same messages as 
during the earlier era. Most importantly, knowing that almost all 
nicotine addiction begins during teen years, tobacco advertisers use 
every trick in the book to lure young people to become their lifelong 
customers.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Tobacco Advertisers Associate Their brands with Whatever is Popular in 
        Culture:
    Ever since the tobacco industry started advertising, it has linked 
its products to whatever is popular in culture. During wartime 
cigarettes were associated with bravery and victory, during women's 
liberation you got ``you've come a long way, baby'', and today, tobacco 
products are marketed as ``natural and organic'' even though they are 
equally deadly. As soon as COVID-19 arrived, tobacco marketeers 
recognized the opportunity: Offering free hand sanitizer with purchase, 
giving out branded facemasks, and ads sporting slogans such as ``stay 
home and vape'' and ``work from home with the calming effect of sweet 
caramel tobacco.''

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

The Tobacco Industry is Introducing a Wide Assortment of New Products:
    By now, most of us are familiar with the story of how JUUL drove an 
epidemic of nicotine addiction among American youth. Clearly the 
lessons learned from the Juul fiasco are important--but the issue is 
much broader than this one brand. Faced with declining sales of 
traditional cigarettes, major tobacco companies are introducing non-
combustible nicotine delivery products including e-cigarettes, heated 
tobacco, and a variety of recreational oral nicotine products (pouches, 
lozenges, & gums). While the accomplishments of North Carolina in its 
JUUL settlement is a good start, their settlement covers only a single 
brand in a single state. A comprehensive nationwide regulatory 
framework spanning both traditional and emerging tobacco products is 
needed.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Tobacco Advertising Has Been Regulated by the Federal Government for a 
        Century:
    Promotion of tobacco products has been regulated by the Federal 
government since the 1920s with a series of actions adopted by 
Congress, the FTC, and FDA. In each and every case, the industry has 
effectively circumvented governmental regulation designed to protect 
the public from their predations. For example, in 1970 Congress banned 
tobacco advertising from broadcast mass media, which at the time was 
limited to television and radio. Half a century ago Congress could not 
have conceived the revolution in mass media today. Social media is a 
powerful form of mass media, especially among its heaviest users--
teenagers. Facebook and Instagram are widely exploited by tobacco 
marketers. In former days, the tobacco ads featured movie stars and 
sports heroes--today they make extensive use of influencers--social 
media stars with vast online followings. There is strong justification 
to eliminate all tobacco marketing from social media. There is a clear 
analogy to the precedent set by the 1970 Federal ban TV/Radio ban.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


          Selected Highlights of Tobacco Advertising Regulation
1929                  Weight Loss Claims        Federal Trade Commission
1955                  Unsubstantiated health    Federal Trade Commission
                       claims
1964                  Celebrities + Athletes    Cigarette Advertising
                                                 Code
1965                  Warning Labels            Congress (Federal
                                                 Cigarette Labeling and
                                                 Advertising Act)
1971                  TV and Radio ads (FTC)    Congress (Public Health
                                                 Cigarette Smoking Act)
1998                  Sponsorships              Master Settlement
                      Cartoon characters         Agreement
                      Outdoor advertising
                      Movie product placement
                      Sampling except where
                       underage excluded Brand
                       on merchandise (e.g.,
                       tee shirts)
2009                  Flavored Cigarettes
                       (except for menthol)
                      Congress (Family Smoking
                       Prevention Act)
                      Mild, light, low
                       descriptors
                      Claims of harm reduction
 

Flavored Tobacco is a Major Attractant to Youth:
    Flavored tobacco is a major draw for underage youth. For centuries 
tobacco came in only one flavor-plain tobacco. In the mid-20th century 
menthol cigarettes were introduced and became popular among youthful 
starter smokers and especially African Americans. None of this was 
accidental--to drive demand these groups were comprehensively targeted 
by the makers of Kool, Newport, and Salem via intensive advertising 
bombardment. Today tobacco comes in thousands of flavor varieties, 
especially e-cigarettes and mini-cigars, in sweet treat flavors such as 
cotton candy, gummy bear, and mango. In an attempt to hide their youth-
oriented flavors brands adopt ``concept'' flavor names hence Fruity 
mango becomes ``gold,'' berry blast--``solar,'' and other sweet, fruity 
and creamy flavors carry names like ``Unicorn puke.''
    In 2009, Congress banned all flavors from cigarettes except for 
tobacco and menthol. In 2020, the favor ban was extended, but narrowly 
focused on pod-type e-cigarettes. Such narrowly focused bans are doomed 
to fail as the industry simply innovates around them--in this case by 
offering disposable e-cigarettes in every conceivable sweet and fruity 
flavor. To protect American youth, flavors including menthol should be 
banned from all tobacco products.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

The ``Tobacco-Free'' and Synthetic Nicotine'' Legal Loophole Urgently 
        Needs to be Closed
    More than a decade after the FDA was given authority over tobacco 
products it is invoking its regulatory authority over newly emerging 
products via the PMTA (Premarket Tobacco Application) process. Numerous 
small companies lack the resources to fulfill the rigorous application 
requirements, which necessitates numerous costly clinical and 
toxicological investigations, have no choice other than abandoning 
their business or finding a means of being exempted from the PMTA 
process. As the deadline for the PMTA approached, a surge of nicotine 
containing brands emerged on the U.S. market sporting claims such as 
``tobacco-free nicotine'' and/or ``synthetic nicotine.''
    The 2009 Federal law defined a tobacco product as derived from any 
part of the tobacco plant. In a cynical attempt to exempt their 
products from regulation, many companies introduced brands they claim 
are ``tobacco-free,'' mostly based upon the use non-tobacco derived 
``synthetic nicotine.'' Advertisements for products emphasize their 
supposed ``cleanliness and purity'' implying that they are more 
healthful. The inclusion of the word ``free'' suggests freedom from 
harm.
    These ``tobacco-free'' nicotine brands are widely sold on major 
online stores (e.g., Amazon, eBay, Target) which have policies 
prohibiting tobacco sales, and are easily purchased by underage 
individuals. Some of these brands claim exemption from tobacco taxation 
and ignore provisions of the PACT Act (which specifically references 
synthetic nicotine).
    The case of Puff Bar disposable e-cigarettes is illustrative. 
Following the January 2020 ban on flavored pod e-cigarettes, Puff Bar 
flourished due to its close resemblance to JUUL and its innumerable 
sweet and fruity flavors. In July 2020, the FDA ordered Puff Bar to 
cease its sales as it had not been authorized to be on the market. 
Shortly thereafter, Puff Bar resumed sales and claimed that it was now 
formulated with synthetic nicotine and thus exempt from regulation. 
This highlights the urgent need for Congress to close the 2009 loophole 
by designating all forms of nicotine to be either a drug or tobacco 
product.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Smoking Cessation Claims:
    While quitting is a more desirable outcome, it is a worthwhile goal 
to help adult smokers to transition to a less harmful means of 
satisfying their nicotine addiction. While it will not be known for 
certain until decades have passed, non-combustible products such as e-
cigarettes are likely safer than cigarettes. So far, while e-cigarettes 
are a bit more effective than traditional nicotine replacement 
therapies (e.g., patches, gums), durable smoking cessation still only 
succeeds in a small minority of cases. This is offset by smokers using 
cigarettes (where allowed) and e-cigarettes (where smoking is banned). 
This so-called dual use deepens nicotine addiction. The lack of 
cessation efficacy has not prevented advertisers from messaging 
potential customers that their brands is good ``switching'' or an 
``alternative'' and other clever but easily understood slogans such as 
``it worked for me.''

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

The Nicotine Arms Race and the Need for a Cap on Nicotine 
        Concentration:
    One legacy of JUUL is that it triggered a ``nicotine arms race'' 
tripling the average concentration of nicotine in e-liquids from 1-2 
percent to 5-6 percent--a potently addictive level for nicotine naive 
youth. Initiating nicotine addiction via conventional cigarettes takes 
considerable effort on the part of a teenager. Upon initial experience 
the smoke triggers coughing fits due to its harshness. Also, tobacco 
smoke is an acquired taste and is notably unpleasant to most non-
smokers. If a beginner pushes beyond a limited number of puffs, the 
youth typically get sick, with nausea and even vomiting.
    The experience of being introduced to nicotine via a high nicotine 
e-cigarette is markedly different. Because the vapor is much less 
noxious than cigarette smoke and tastes sweet or fruity, teens can take 
in large quantities of nicotine rapidly. Many teens report a nicotine 
``head buzz'' with JUUL--a pharmacologic effect of high levels of 
nicotine on the brain seldom seen with smoking. The social nature of 
vaping, and the urge of teens to join the crowd and to eagerly do what 
is popular among their peers, leads to excessive use with rapid 
induction of nicotine tolerance and deepening addiction. Some teens 
have gone so far as to trigger seizures due to nicotine overdose using 
high nicotine e-cigarettes.
    Most teens do not understand addiction and believe they can quit 
anytime, even though they wake up at night with chills and cravings and 
reach for their e-cigarette. Many teens suck on their device first 
thing in the morning (a clear indicator of addiction) and periodically 
throughout the day. Nicotine addiction is notoriously hard to break. 
The consequences of withdrawal are intensely unpleasant, which becomes 
a major deterrent to quitting. Once hooked on nicotine, many teens 
graduate to other tobacco products, including cigarettes.
    Europe, the United Kingdom, and Israel all limit the amount of 
nicotine in e-cigarettes to under 2 percent. In the U.S. there is no 
cap enabling the market to be flooded with super high nicotine 
products. A disturbing new trend is large volume disposable e-
cigarettes. A JUUL pod delivered approximately the same number of puffs 
(200) at similar nicotine delivery to a pack of 20 cigarettes. 
Regulation is needed which caps the concentration of nicotine (e.g., to 
2 percent as in Europe, UK, and Israel).
Large Volume e-Cigarettes and the Need for a Cap on Nicotine Volume
    Some disposable e-cigarettes deliver thousands of puffs of highly 
concentrated nicotine initially 1000-2000 puffs and 5000-6000 puff 
monsters with the nicotine equivalent of some 3 cartons full of 
cigarettes (i.e., @ 600 cigarettes worth of nicotine) at a very modest 
price. Regulation is needed which caps the volume of nicotine per 
product (e.g., to no more than equivalent to single pack of 
cigarettes).

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Disingenuous Public Relations Example: Philip Morris ``Foundation for a 
        Smoke Free World''
    In September 2017, Philip Morris International (PMI) launched what 
it dubbed a ``Foundation for a Smoke-Free World.'' The company pledged 
to spend $1 billion over a 12-year period, $80 million per year, 
purportedly to support tobacco harm reduction by accelerating research 
into alternatives to cigarettes. While the company claims that the 
Foundation is free from PMI's control, critics have pointed out that 
the corporation maintains substantial control. Incongruous slogans such 
as ``A tobacco company that actually cares about health,'' which 
headlined a full-page Wall Street Journal advertisement in January 
2019, are revealing. They also featured advertisements with the slogan: 
``Our New Year's resolution--We're trying to give up cigarettes.'' It 
seems clear that PMI's ``unsmoke campaign'' is not focused upon smoking 
cessation, but rather legitimizing and promoting alternative nicotine 
delivery--i.e. its IQOS product. As PMI remains active in undermining 
policies intended to reduce cigarette use, many public health advocates 
believe that the company created the Foundation as a public relations 
measure to burnish its image while promoting its IQOS brand. While it 
should be obvious, it should be emphasized that if PMI were serious 
about achieving a ``smoke free world,'' it would halt its aggressive 
worldwide marketing of Marlboro and its other heavily promoted 
cigarette brands.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Plummeting Price of Nicotine Addiction:
    An observation about predatory pricing strategies in 2021. JUUL 
started out with a price of $50, a challenge for teens with limited 
discretionary income. This month I bought a JUUL in a California gas 
station at the nationally advertised price of only $4.99--10 percent of 
JUUL's original price. For a mere $1.49 I bought a VUSE e-cigarette, an 
RJ Reynold's product, a price far no doubt well below the cost of its 
manufacture.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

The Need for Comprehensive Regulation
    As a matter of public health policy, protecting teens from nicotine 
addiction is of utmost importance. After all, the single most effective 
means of stemming smoking among the adult population is to keep kids 
from becoming addicted in the first place. Comprehensive Federal 
regulation is needed to encompass advertising (content and delivery 
channels), flavors, and nicotine (Limit on both concentration and 
volume).
Selected SRITA Academic Papers
    Jackler RK, Chau C, Getachew BD, Whitcomb MM, Lee-Heidenrich J, 
Bhatt AM, Kim-O'Sullivan, Hoffman ZA, Jackler LM, Ramamurthi D. JUUL 
Advertising Over its FirstThree Years on the Market. White Paper, 
Stanford University. (http://tobacco.stanford.edu/juulanalysis) 
February 2019
    Ramamurthi D, Chau C, Jackler RK. JUUL and other stealth 
vaporisers: hiding the habit from parents and teachers. Tob Control. 
2018 Sep 15. pii: tobaccocontrol-2018-054455. doi:10.1136/
tobaccocontrol-2018-054455.
    Jackler RK, Ramamurthi D. Nicotine arms race: JUUL and the high-
nicotine product market. Tob Control. 2019: 28; 623-628.
    Jackler RK, Ramamurthi D, Louis-Ferdinand NG. Rapid Growth of JUUL 
Hashtags After the Company Ceased Social Media Promotion. White Paper, 
Stanford University.(tobacco.stanford.edu/hashtagjuulgrowth) 2019
    Jackler RK, Ramamurthi D, Axelrod AK, Jung JK, Louis-Ferdinand NG, 
Reidel JE, Yu AWY, Jackler LM, Chau ``Global Marketing of IQOS: The 
Philip Morris Campaign to Popularize ``Heat-Not-Burn'' Tobacco.'' SRITA 
White Paper (313 pages) Stanford University. (http://
tobacco.stanford.edu/tobacco_main/publications/IQOS_KPaper_2-21-
2020F.pdf
    Jackler RK, Li VY, Cardiff RAL, Ramamurthi D. Promotion of tobacco 
products of Facebook: policy versus practice. Tob Control. 2019; 28: 
67-73.
    Qian ZJ, Hill MJ, Ramamurthi D, Jackler RK. Promoting Tobacco Use 
Among Students: The U.S. Smokeless Tobacco Company College Marketing 
Program. Laryngoscope. 2020 Nov 13. doi: 10.1002/lary.29265. Epub ahead 
of print. PMID: 33185280.
    Ramamurthi D, Chau C, Jackler RK. Exploitation of the COVID-19 
pandemic by e-cigarette marketers [published online ahead of print, 
2020 Aug 27]. Tob Control. 2020;tobaccocontrol-2020-055855. 
doi:10.1136/tobaccocontrol-2020-055855
    Ramamurthi D, Gall PA, Ayoub N, Jackler RK. Leading-brand 
advertisement of quitting smoking benefits for e-cigarettes. Am J 
Public Health. 2016;106: 2057-2063.
    Jackler RK, Ramamurthi D. Unicorns Cartoons: Marketing Sweet & 
Creamy e-Juice to Youth. Tob Control 2017;26:471-475
    Ramamurthi D, Fadadu RP, Jackler RK. Electronic cigarette marketers 
manipulate anti-tobacco advertisements to promote vaping. Tob Control 
2015 (e-ahead of print). (doi:10:1136/tobaccocontrol-2015-052661.)
Manuscripts undergoing peer review:
    Tobacco or Not Tobacco: Ambiguities in Marketing ``Tobacco-Free'' 
and ``Synthetic Nicotine'' Products
    Flavor Spectrum of the Puff Family of Disposable e-Cigarettes

    Senator Blumenthal. Thank you very much, Dr. Jackler. 
Excellent. Ms. Johnson. You will have to turn on your 
microphone.

STATEMENT OF ARIEL FOX JOHNSON, SENIOR COUNSEL, GLOBAL POLICY, 
                       COMMON SENSE MEDIA

    Ms. Johnson. Thank you. Good afternoon, Chair Blumenthal 
and Ranking Member Blackburn. Thank you for inviting me today 
and for examining the harms that digital marketing poses to 
kids. Today's online ecosystem leaves children open to 
commercial exploitation and persuasion of all stripes, 
including by sellers of toxic and unhealthy products. Congress 
must act to create safeguards that protect young people.
    I am Ariel Fox Johnson, Senior Counsel for Global Policy at 
Common Sense, the leading organization dedicated to helping 
kids and families thrive in an increasingly digital world. I am 
also a mother of two, seeing firsthand the effects of digital 
marketing on kids. My testimony today emphasizes three main 
points. First, children and teens are uniquely vulnerable to 
advertising, and especially to the highly personalized, 
targeted digital ad techniques of today that include influencer 
marketing, advergames, and native ads.
    Second, digital marketing is causing real harms for young 
people, contributing to obesity, to crash diets and low self-
esteem, to tobacco and alcohol use, to a culture of 
surveillance, to compulsive technology use. And third, Congress 
can and should enact safeguards to protect children from 
targeted and manipulative online marketing that takes advantage 
of their age and their lack of experience. Pediatricians and 
ad-execs agree, children and teens are uniquely vulnerable to 
advertising. Young kids can identify ads and older kids have 
trouble understanding that an ad's goal is to sell them 
something and that it is biased. That is why elsewhere there 
are rules about marketing to kids.
    On TV, hosts can't hawk products and commercials have to be 
distinguished from content. On billboards near schools and 
publications with significant teen readership, tobacco ads are 
limited. But at the digital world, where marketing techniques 
are even more pernicious, these safeguards for kids do not 
exist. Ads online are often indistinguishable from content. One 
study found a third of posts on Instagram are actually ads. 
Almost half of videos on YouTube watched by young children 
promote products for kids to buy.
    And fast food companies weave their products into game 
storylines. Ads are also offered in exchange for easier 
gameplay. This implicit targeting makes ads even harder for 
kids to identify and to assess. And offering rewards in 
exchange for viewing keeps kids hooked in a vicious loop. Ads 
today are also highly personalized, a fact that most children 
and many adults do not realize, fine-tuned to specifically 
appeal to the child at hand, and filtered to create a vision of 
reality that benefits advertisers and puts kids at risk. Kids 
find this creepy. They feel that marketers are stalking them.
    And this leads to a culture of surveillance where they feel 
constantly watched. This also enables advertisers to exploit 
specific vulnerabilities, such as targeting teens who are 
profiled as interested in gambling with ads for poker chips. 
Ads today also rely on figures kids trust, peers, celebrities, 
beloved cartoon characters, platform social proofs by showing 
kids that other people that they respect and admire are buying 
it or doing it, taking advantage of para-social relationships 
that young people have developed.
    Indeed, studies show children and teens are not as critical 
in their assessing influence or marketing. Research has shown 
that children who view influencers pushing unhealthy snacks 
consume significantly more calories. Juul got around to social 
media ad ban by hiring celebrities popular with teens to use 
its products, and teens who see vaping ads are much more likely 
to vape. Other celebrities have pushed baseless diet products 
to impressionable teens, and it is not surprising that 
researchers have found an increase in time on Instagram is 
associated with an increase in eating disorders.
    Companies know that if they make a product or activity cool 
or irresistible and get some early adopters, teens will 
basically sell it to each other via viral marketing. Large 
companies take advantage of manipulative tricks and techniques 
to hook young people with essentially no repercussions today. 
Congress and the Administration can and should act and take 
concrete steps to better protect children's well-being. We need 
to better resource the Federal Trade Commission. There are 
countless influencer ads today that violate their current 
endorsement guidelines, but we also need updated guidelines, 
including those that address kids and teens.
    And we should look to other agencies who have experience 
with this, like the FTC and the FDA. We need to update COPPA 
and pass privacy laws that protect youth and all of us from 
targeted advertising. We need a children's television act for 
the digital age. Rules addressing host selling and the pushing 
of alcohol, tobacco, and other unsafe products.
    And moving forward, we need timely and independent research 
so that next time we can stay ahead of the marketing curve. Our 
children deserve nothing less. Thank you again and I look 
forward to questions.
    [The prepared statement of Ms. Johnson follows:]

Prepared Statement of Ariel Fox Johnson, Senior Counsel, Global Policy, 
                           Common Sense Media
    Good afternoon Chair Blumenthal, Ranking Member Blackburn, and 
members of the Subcommittee. Thank you for the opportunity to appear 
before you and for your interest in deceptive marketing practices and 
how they can cause real harm to kids, including by pushing toxic and 
unsafe products.
    My name is Ariel Fox Johnson, Senior Counsel for Global Policy at 
Common Sense Media. Common Sense, founded in 2003 by CEO James P. 
Steyer, is the Nation's leading organization dedicated to helping kids 
and families thrive in a rapidly changing digital world. We give 
parents, teachers, and policymakers unbiased information, trusted 
advice, and innovative tools to help them harness the power of media 
and technology as a positive force in all kids' lives. Common Sense has 
provided millions of families and kids the resources to think 
critically and make responsible choices about the media they create and 
consume.
    Digital marketing to young people has grown increasingly insidious 
in its methods, causing real harm--particularly when these methods are 
used to push unsafe products, but also because these methods simply 
take advantage of kids' naivete. Kids are defenseless against data-
driven, highly personalized advertising techniques that merge content 
with commercials, are woven into video games, and make heavy use of 
peer and celebrity influencers and trusted characters. These tactics 
exacerbate harms when ads are used to push unhealthy food and drink, 
tobacco products, diet pills, weapons, alcohol, gambling, and other 
``adult'' products and activities. Such marketing can lead kids to 
unknowingly spend thousands of dollars on virtual products in video 
games. And these practices feed into a culture of surveillance and 
compulsive usage.
    Your hearing today is extremely important to the health and well 
being of children. And there are a number of concrete steps Congress 
and the Administration can and should take to better protect children 
and families online that I will discuss below. They include stronger 
enforcement powers and increased resources for the Federal Trade 
Commission, as well as the adoption of key legislation to prohibit 
targeted advertising and tracking of children and teens, require ad 
transparency, prevent manipulative commercial practices, and fund more 
independent research into online marketing and the overall impact of 
digital media use on children's health.
A. Common Sense's history of helping families navigate the digital 
        world
    Common Sense reaches 125 million households with its age-
appropriate media ratings and reviews, and our award winning Digital 
Citizenship Curriculum is the most comprehensive K-12 offering of its 
kind in the education field; we have over 1 million registered 
educators using our resources in more than half of U.S. schools. Our 
Research Program, including our Common Sense Census, provides 
independent data on children's use of media and technology and the 
impact it has on their physical, emotional, social, and intellectual 
development. Our Privacy program evaluates popular ed-tech and other 
products used at home and in the classroom, and we actively support the 
unique needs of low-income families and families of color, empowering 
them to navigate the digital world with confidence.
    Common Sense has long advocated for better online protections for 
children and teens from unfair and deceptive marketing. We have 
researched advertising practices online, how the digital world affects 
body image and self esteem, and the power of influencers.i 
We have highlighted how online ad techniques can push unhealthy food, 
products and unwanted spending, and advocated for more regulatory 
safeguards. ii We have supported bans on junk food 
advertising and encouraged media outlets to refuse to accept 
advertising from e-cigarette makers. iii And we have 
supported additional steps to limit youth access to vaping and other 
flavored tobacco products. Our digital citizenship curriculum teaches 
kids how to assess online materials and content, including advertising. 
For example, our lesson on anti-vaping media literacy helps students 
think critically about Juul's marketing messages and the manipulative 
tactics used to addict them to nicotine. iv
---------------------------------------------------------------------------
    \i\ Rideout, Victoria. (January 28, 2014). Advertising to Children 
and Teens: Current Practices, Common Sense Media. Pai, Seeta and Kelly 
Schryver, (January 21, 2015). Children, Teens, Media, and Body Image, 
Common Sense Media. Robb, Michael B. (2020). Teens and the News: The 
Influencers, Celebrities, and Platforms They Say Matter Most, Common 
Sense Media.
    \ii\ Fox Johnson, Ariel. (June 22, 2020). Comments to the Federal 
Trade Commission on Guides Concerning the Use of Endorsements and 
Testimonials in Advertising, Common Sense Media,
    \iii\ Common Sense has endorsed the Reversing the Youth Tobacco 
Epidemic Act to combat children's nicotine addiction and encouraged 
media outlets to refuse to accept advertising from Juul and other e-
cigarette makers.
    \iv\ Higgin, Tanner. (October 4, 2019). ``How to Use the Vaping and 
Juuling Trend to Teach Media Literacy,'' Common Sense Media.
---------------------------------------------------------------------------
B. Companies' digital marketing practices are particularly problematic 
        for kids
1. Kids have trouble identifying and understanding ads--especially 
        online
    Both child development experts and advertising professionals 
recognize that children's cognitive abilities are not sufficient to 
understand advertising the way adults do and that young people are a 
vulnerable target group.v This is especially true online. 
There are two cognitive processes needed to fully understand 
advertising: the ability to distinguish between commercial and non 
commercial content, and the ability to recognize the persuasive intent 
of an ad while understanding the information in the ad is biased.
---------------------------------------------------------------------------
    \v\ Daems, K., De Pelsmacker, P., & Moons, I. (Nov. 17, 2017). 
Advertisers' perceptions regarding the ethical appropriateness of new 
advertising formats aimed at minors, Journal of Marketing 
Communications.
---------------------------------------------------------------------------
    Research suggests children are not aware of advertisements until 4-
5 years of age.vi And over 75 percent of kids between 8-11 
years old cannot distinguish advertising from other content. 
vii Older children very often confuse Google search ads with 
organic search results. When surveying kids 5-15 years of age, the UK 
Office of Communications found that only 45 percent of 12--15 year olds 
understood that the top search results in a google search had paid to 
appear as such, despite being labeled with an orange box reading 
``ad''.viii
---------------------------------------------------------------------------
    \vi\ American Psychological Association. (February 20, 2004). 
Advertising and Children, http://www.apa.org/pubs/info/reports/
advertising-children
    \vii\ Ofcom. (November 2016). Children and parents: Media Use and 
Attitudes Report 2017.
    \viii\ Ofcom. (November 20, 2015). Children and Parents: Media Use 
and Attitudes Report 2015.; Shieber, Jonathan. (January 24, 2020). 
Google backtracks on search results design, TechCrunch.
---------------------------------------------------------------------------
    Further, even when children can differentiate between sponsored and 
non-sponsored content, they still have considerable trouble 
understanding the ``selling intent'' of the ad. Children under 8 years 
old lack the cognitive ability to understand the persuasive intent of 
advertisements. Children ages 6-7 predominantly view advertisements as 
informational programs that are used as ``a break for either the people 
working on television or the viewers.'' ix Many older 
children up to age 12 have trouble identifying and/or understanding the 
commercial intent of an advertisement.x
---------------------------------------------------------------------------
    \ix\ Graff, Samantha, Dale Kunkel & Seth E. Mermin. (2012). 
``Government Can Regulate Food Advertising to Children Because 
Cognitive Research Shows that it is Inherently Misleading,'' Health 
Affairs 2, 392-398.
    \x\ Ofcom. (Nov. 2016). Children and parents: Media use and 
attitudes report; Graff, S., Kunkel, D., & Mermin, S. E. (2012). 
Government can regulate food advertising to children because cognitive 
research shows that it is inherently misleading. Health Affairs 2, 392-
398; Valkenburg, P. M., & Cantor, J. (2001). ``The development of a 
child into a consumer,'' Journal of Applied Developmental Psychology, 
22(1), 61-72. https://doi.org/10.1016/S0193-3973(00)00066-6; Carter, O. 
B. J., et al., (March 2011). ``Children's understanding of the selling 
versus persuasive intent of junk food advertising: Implications for 
regulation.'' Social Science & Medicine 72(6) 962-968.
---------------------------------------------------------------------------
    Online, children have even less understanding of advertising than 
on television because the tactics used by companies are more implicit. 
Several studies have found that children have ``lower awareness of 
advertising on websites compared with television, and greater 
difficulty recognizing it.'' xi As the American Academy of 
Pediatrics has noted, even for those older children and teens who may 
be able to recognize an advertisement, they ``often are not able to 
resist it when it is embedded within trusted social networks, 
encouraged by celebrity influencers, or delivered next to personalized 
content.'' xii
---------------------------------------------------------------------------
    \xi\ American Psychological Association. (February 20, 2004). 
Advertising and Children, http://www.apa.org/pubs/info/reports/
advertising-children
    \xii\ American Academy of Pediatrics. (July 2020). Policy 
Statement: Digital Advertising to Children, https://doi.org/10.1542/
peds.2020-1681.
---------------------------------------------------------------------------
2. Marketing online implicitly and personally targets young people, 
        taking advantage of their credulity and lack of experience
    Ads are pervasive in children's digital content. For example, 
Common Sense research found advertising occurred in 95 percent of early 
childhood videos on YouTube. Over one-third of videos in the early 
childhood category contained three or more ads. xiii Another 
study found that 96 percent of the most-downloaded free apps for 
children under five on Google Play contained commercial content, 
including hidden ads and automatically appearing pop up 
ads.xiv
---------------------------------------------------------------------------
    \xiii\ Ad design in these videos was often problematic, such as 
banner ads that blocked educational content, sidebar ads that could be 
confused for recommended videos, or ads for video games that showed 
doctored versions of popular characters, such as Peppa Pig. Radesky, J. 
S., Schaller, A., Yeo, S. L., Weeks, H. M., & Robb, M.B. (2020). Young 
kids and YouTube: How ads, toys, and games dominate viewing, 2020. San 
Francisco, CA: Common Sense Media.
    \xiv\ American Academy of Pediatrics. (July 2020). Policy 
Statement: Digital Advertising to Children, https://doi.org/10.1542/
peds.2020-1681.
---------------------------------------------------------------------------
    Contemporary advertising does not explicitly persuade children, but 
rather targets them implicitly, using enjoyable content to reach them 
unconsciously. Online advertisements include precise behavioral and 
location targeting, ``native ads'' where the content is the ad, viral 
and social media marketing, advergaming, host selling and product 
placement, and more. Further, children are often watching on their own, 
so parents have no idea what products are being pushed on their 
children, and children have even less hope of identifying 
advertisements.

   Highly personalized (and therefore persuasive). With 
        behavioral advertising, marketers and data brokers can create 
        dossiers of a young person's interests, fine-tuning sales 
        pitches to impressionable audiences. Most children do not 
        realize that ads can be customized to them or based on their 
        tracked activity, or that they see different ads than their 
        friends in the same game.xv As explained by the 
        American Academy of Pediatrics ``[p]revious online behaviors 
        shape what is delivered to users via news, notifications, and 
        social media feeds, creating a filter bubble in which all 
        input, unbeknownst to users, is tailored to their interests and 
        creates false norms that can undermine healthy behaviors.'' 
        xvi
---------------------------------------------------------------------------
    \xv\ Anonymous. (May 8-13, 2021). ``They see you're a girl if you 
pick a pink robot with a skirt'': How children conceptualize data 
processing and digital privacy risks. In CHI '21: ACM CHI Conference on 
Human Factors in Computing Systems; academics studying children's 
interactions with apps have found that ``some thought everyone received 
the same ads,'' or perhaps the same ads but not at the exact same time, 
while some thought ``certain ads would be shown for the same video at 
the same time, similar to TV ads.'' Zhao, J., Wang, G., Dally, C., 
Slovak, P., Childs, J. E., Van Kleek, M., & Shadbolt, N. (May 2019). 
``I make up a silly name'': Understanding children's perception of 
privacy risks online.'' CHI Conference on Human Factors in Computing 
Systems Proceedings 2019, p. 2.
    \xvi\ American Academy of Pediatrics. (July 2020). Policy 
Statement: Digital Advertising to Children, https://doi.org/10.1542/
peds.2020-1681.

   Indistinguishable from content. Native ads are 
        advertisements posing as articles, videos, or search results 
        that feature or highlight a brand, which has paid for the 
        production of the material as part of a marketing partnership 
        with the host website. In many cases, the content is the ad: 
        one study found that one third of posts on Instagram were ads, 
        while others have found undisclosed sponsored posts are 
        ubiquitous on the platform.xvii Common Sense 
        research has found that a third of children under age eight 
        report sometimes or regularly watching unboxing videos--
        essentially program-length advertisements--on 
        YouTube.xviii The nine-year old multi-million dollar 
        star of many popular unboxing videos has faced consumer 
        complaints over failures to disclose paid product 
        placement.xix The lack of separation between 
        sponsored and non-sponsored content online can make it harder 
        for a child to distinguish an advertisement from 
        entertainment.xx
---------------------------------------------------------------------------
    \xvii\ Campaign for a Commercial-Free Childhood, et al., (April 15, 
2021). Letter to Mark Zuckerberg to stop Instagram for children.
    \xviii\ Rideout, Victoria. (October 19, 2017). Common Sense Census: 
Media Use by Kids Age Zero to Eight, Common Sense Media.
    \xix\ Hsu, Tiffany. (September 4, 2019). ``Popular YouTube Toy 
Review Channel Accused of Blurring Lines for Ads,'' The New York Times.
    \xx\ American Psychological Association. (February 20, 2004). 
Advertising and Children, http://www.apa.org/pubs/info/reports/
advertising-children

   Promoted by people kids trust--peers, celebrities, and 
        beloved characters. Marketers are quite effective at turning 
        kids themselves into spokespeople: teens may be unknowingly 
        conscripted into being product ambassadors, encouraged to 
        submit photos and share products and content with friends, 
        while young children are regularly prompted to share their game 
        progress on social media and to rate apps, which is effective 
        at commercializing friends.xxi Platforms use 
        ``social proofing'' to show users that their friends are doing 
        or buying something, as this is effective at getting the user 
        to follow suit. Additionally, ``peers'' and celebrities 
        intentionally push products via unboxing videos and influencer 
        campaigns, host-selling in ways that would be prohibited on 
        television because they take advantage of a kid's special 
        relationship with a host or a character. Both children and 
        teens are not as critical as adults when seeing influencer 
        marketing, they have developed parasocial relationships and 
        view influencers and characters as credible, likeable, or even 
        inspirational.xxii
---------------------------------------------------------------------------
    \xxi\ Meyer M., Adkins V, Yuan N, et al., (January 2019). 
``Advertising in Young Children's Apps: A Content Analysis,'' Journal 
of Developmental and Behavioral Pediatrics: JDBP 40(1), p. 32-39. DOI: 
10.1097/dbp.0000000000000622. PBS Frontline, (February 18, 2014), 
Generation Like. [Video] http://www.pbs.org/wgbh/frontline/film/
generation-like/; See also Workgroup on Children's Online Privacy 
Protection. (Dec. 30, 2013). Report to the Maryland General Assembly on 
Children's Online Privacy 17.
    \xxii\ Campbell, Margaret C. and Amna Kirmani. (June 2000). 
``Consumers' Use of Persuasion Knowledge: The Effects of Accessibility 
and Cognitive Capacity on Perceptions of an Influence Agent,'' Journal 
of Consumer Research 27(1), p. 69-83. Richert, RA, Robb MB, Smith EI. 
(2011). ``Media as social partners: the social nature of young 
children's learning from screen media.'' Child Dev. 82(1), p. 82-95. 
doi:10.1111/j.1467-8624.2010.01542.x.

   Made into games. Advergames are used to entertain kids, 
        while slipping commercial content into their view and pairing 
        brands with the emotional experience of playing a game or 
        winning rewards. One study found only a quarter of children 
        were able to recognize an advergame. xxiii Children 
        under nine have shown lower conceptual and attitudinal 
        advertising literacy for advergames than traditional television 
        ads. xxiv And online games of all types push virtual 
        in-app purchases on players.
---------------------------------------------------------------------------
    \xxiii\ Soontae An, Hyun Seung Jin & Eun Hae Park. (2014). 
``Children's Advertising Literacy for Advergames: Perception of the 
Game as Advertising,'' Journal of Advertising 43(1), p. 63-72, DOI: 
10.1080/00913367.2013.795123.
    \xxiv\ Hudders, Liselot & Cauberghe, Verolien & Panic, Katarina. 
(2015). ``How Advertising Literacy Training Affects Children's 
Responses to Television Commercials versus Advergames,'' International 
Journal of Advertising. 10.1080/02650487.2015.1090045.
---------------------------------------------------------------------------
C. Online marketing causes real world harm for young people
    Online promotions cause real world harm--in pushing unhealthy and 
toxic products and behaviors and in supporting a culture of 
surveillance and compulsive use. Studies demonstrate that ads quickly 
affect kids' desires and purchase requests, leading to unhealthy 
purchases and actions. According to the American Academy of Pediatrics, 
ad exposure is associated with ``unhealthy behaviors, such as intake of 
high-calorie, low-nutrient food and beverages; use of tobacco products 
and electronic cigarettes; use of alcohol and marijuana . . .'' 
xxv (It is worth noting that even if parents or caregivers 
deny requests, a harm still occurs: intra-family conflict when requests 
precipitated by advertising are denied--older kids recognize the 
injustice of this, reporting ``it's unfair to target kids with ads to 
buy things. Kids/families might not be able to afford them.'' 
xxvi)
---------------------------------------------------------------------------
    \xxv\ American Academy of Pediatrics. (July 2020). Policy 
Statement: Digital Advertising to Children, https://doi.org/10.1542/
peds.2020-1681.
    \xxvi\ Data Protection Commission, (January 28, 2019) Know Your 
Rights and Have Your Say! Stream Two of the DPC's Public Consultation 
on the Processing of Children's Personal Data and the Rights of 
Children as Data Subjects under the GDPR; (July 29,2019) ``Some stuff 
you just want to keep private!''--Preliminary report on Stream II of 
the DPC's consultation on the processing of children's personal data 
and the rights of children as data subjects under the GDPR.
---------------------------------------------------------------------------
    The highly personalized nature of today's advertising exacerbates 
these harms. Facebook--which recently announced new ad restrictions 
toward teenagers--has gotten into hot water in the past when it was 
revealed that employees had told advertisers they could identify when 
teens and other young people were feeling ``stressed,'' ``defeated,'' 
``overwhelmed,'' ``anxious,'' ``nervous,'' ``stupid,'' ``silly,'' 
``useless,'' and ``a failure''.xxvii Kids who are anxious or 
have low self-esteem do not need to be shown more dieting tips, offered 
an energy drink pick-me-up, or be otherwise commercially manipulated.
---------------------------------------------------------------------------
    \xxvii\ Levin, S. (May 1, 2017). ``Facebook told advertisers it can 
identify teens feeling 'insecure' and 'worthless'.'' The Guardian.

   Unhealthy food and obesity. The relationship between food 
        advertisements and childhood obesity is well-documented. It has 
        been widely studied how promoting unhealthy food to children 
        directly impacts their dietary habits, and more recent research 
        has started to examine unhealthy food purveyors' use of digital 
        marketing.xxviii Food companies know how successful 
        targeting children is, and they pay big money to do it. Pepsi-
        Co, CocaCola, and KFC have worked with Facebook to create 
        influencer campaigns to target youth.xxix They have 
        tapped popular multicultural influencers, compounding risks for 
        youth of color who have traditionally been more targeted with 
        unhealthy food and drink.xxx Research has found that 
        children viewing influencers pushing unhealthy snacks consumed 
        significantly more calories and unhealthy snacks than children 
        who watched influencers push non-food items.xxxi 
        Food marketers have also worked to incorporate their products 
        into videogames. Coca-Cola has created teen-directed mobile 
        games, enticing teens to participate with time based challenges 
        and rewards.xxxii Research shows increased caloric 
        intake in children playing advergames.xxxiii More 
        recently, food companies have woven their products into game 
        storylines, and even made products available for order and 
        delivery ``in the heat of the experience, promising instant 
        gratification and short circuiting conscious decision-
        making''--simultaneously, marketers are adapting their products 
        to support digital gaming, pushing energy drinks as ``fuel'' 
        and designing containers that can be opened without 
        interrupting the game.xxxiv
---------------------------------------------------------------------------
    \xxviii\ Common Sense. (2014). Advertising to Children and Teens: 
Current Practices, 2014. Chester, J., K. Montgomery, and K. Kopp. (May 
2021). Big Food, Big Tech, and the Global Childhood Obesity Pandemic, 
Center for Digital Democracy.
    \xxix\ PepsiCo, Coca-Cola, KFC, and other major brands have worked 
closely with Facebook's creative team to develop influencer campaigns 
aimed at young people.
    \xxx\ Chester, J., K. Montgomery, and K. Kopp. (May 2021). Big 
Food, Big Tech, and the Global Childhood Obesity Pandemic, Center for 
Digital Democracy.
    \xxxi\ American Academy of Pediatrics. (July 2020). Policy 
Statement: Digital Advertising to Children, https://doi.org/10.1542/
peds.2020-1681.
    \xxxii\ Common Sense. (2014). Advertising to Children and Teens: 
Current Practices, 2014.
    \xxxiii\ American Academy of Pediatrics. (July 2020). Policy 
Statement: Digital Advertising to Children, https://doi.org/10.1542/
peds.2020-1681.
    \xxxiv\ Chester, J., K. Montgomery, and K. Kopp. (May 2021). Big 
Food, Big Tech, and the Global Childhood Obesity Pandemic, Center for 
Digital Democracy.

   Diet and self esteem. Digital advertising also pushes 
        unhealthy body images and diet products. According to Common 
        Sense research, teens who are active online worry a lot about 
        how they're perceived, and another study has found increased 
        time on Instagram is associated with an increase in eating 
        disorders.xxxv Social media can be especially 
        detrimental if teens are prone to comparing themselves to 
        images.xxxvi Diet products like detox teas claiming 
        to help users lose weight are being sold by major celebrities, 
        some of whom have been fined by the Federal Trade Commission 
        for making false or misleading claims about these products.
---------------------------------------------------------------------------
    \xxxv\ Common Sense Media. (January 20, 2015). Children, Teens, 
Media, and Body Image. Turner, Pixie G. and Carmen E. Lefevre. (June 
2017)``Instagram Use Is Linked to Increased Symptoms of Orthorexia 
Nervosa,'' Eating and Weight Disorders: EWD 22(2), p. 277-84, https://
doi.org/10.1007/s40519-017-0364-2.
    \xxxvi\ Kleemans M, Daalmans S, Carbaat I, Anschutz D. (2018). 
``Picture perfect: the direct effect of manipulated Instagram photos on 
body image in adolescent girls.'' Media Psychology 21(1), p. 93-110.

   Vaping. Sales in e-cigarettes amongst middle school and high 
        school students increased dramatically when U.S. tobacco 
        companies began exploiting their online ads to 
        children.xxxvii Children who saw the ads were 
        significantly more likely to use the products. Internal company 
        documents from Juul revealed a targeted marketing strategy 
        toward kids, using ``copycat advertising'' to target young 
        customers and banner ads on child-oriented 
        websites.xxxviii Bright, flashy, and colorful, Juul 
        ads convinced young people that vaping was a trend with all the 
        ``cool''-factor of cigarettes minus the health risks. Further, 
        Juul circumvented social media bans on paid tobacco advertising 
        by enlisting their own unpaid influencers to spread the product 
        across various platforms, influencing young teens with 
        celebrity endorsements. According to Common Sense research, 
        advertisements of vaping-related content are common (61 percent 
        of teens report seeing them), as are content shared by friends 
        (40 percent of teens) and celebrities, personalities, and 
        influencers (25 percent of teens). Over half of teens say 
        they're likely to see a social post that mentions or shows 
        vaping, and roughly three-quarters of Snapchat and Instagram 
        users report such posts.xxxix
---------------------------------------------------------------------------
    \xxxvii\ Rapaport, Lisa. (April 2016). ``Teens Most Drawn to E 
Cigarettes by Online Ads,'' Reuters Health Report.
    \xxxviii\ Turner, T. (March 10, 2020). How Juul Created A Teen 
Vaping Epidemic, Drugwatch
    \xxxix\ Common Sense. (2019). Vaping and Teens: Key Findings and 
Toplines. Common Sense Media and SurveyMonkey.

   Alcohol, Drugs, and Adult Activities. Research demonstrates 
        a connection between exposure to alcohol and marijuana ads and 
        consumption of these products by young people. Such products 
        are advertised via social media and video, and ads appear 
        disproportionately in communities of color.xl In 
        addition, rules meant to limit what products young people can 
        purchase are less effective than in physical retailers. 
        Ineffective purchasing gates, such as simply stating in a Terms 
        of Use that a user must be 18, have, for example, allowed 
        children to purchase weapons from Amazon.xli And 
        social media companies provide markets for teenagers to find 
        illegal goods, like drugs.xlii What's more, kids may 
        be profiled with interests in gambling or drinking--Facebook, 
        for example, had categorized hundreds of thousands of kids as 
        ``interested in'' gambling and/or alcohol, and at one point was 
        allowing researchers to target such teens with ads featuring 
        poker chips or drinks.xliii
---------------------------------------------------------------------------
    \xl\ American Academy of Pediatrics. (July 2020). Policy Statement: 
Digital Advertising to Children, https://doi.org/10.1542/peds.2020-
1681.
    \xli\ The Parent's Accountability and Child Protection Act, 
(September 2018). A California 14 year old purchased a BB gun, throwing 
knives, and a hunting knife on Amazon without his parent's knowledge.
    \xlii\ Abrahamson, Rachel Paula. (February 8, 2021). ``Mom warns 
about drug dealers on Snapchat after son, 16, dies from overdose,'' 
Today Show.
    \xliii\ Hern, A., and Ledegaard, F. H. (Oct. 9, 2019). ``Children 
'interested in' gambling and alcohol, according to Facebook.'' The 
Guardian.

   Virtual products and confusing currency. Marketing of 
        virtual in-game items and lootboxes is also a big problem. 
        Young and pre-literate children are directly encouraged to 
        spend money within apps and games, and teen apps in particular 
        are highly monetized--one study found teen apps are over three 
        times more likely to support in-app purchases than general 
        audience apps.xliv Often, the fact that a purchase 
        involves actual money is not made clear to kids, who believe 
        their activities have no ``real world'' consequences and do not 
        realize they are spending their parents' money. And kids have 
        spent hundreds and thousands of dollars, collectively totalling 
        millions. Lootboxes contribute to this problem by game-ifying 
        the purchase and randomizing the product received. Almost all 
        the biggest tech companies have settled with the Federal Trade 
        Commission over unfairly permitting minors to make in-app 
        purchases when it was not clear a purchase was being made and 
        when parents were not given a choice whether to allow the 
        purchases.
---------------------------------------------------------------------------
    \xliv\ BBB National Programs. (October 2020). Risky Business: A New 
Study Assessing Teen Privacy in Mobile Apps.

   Surveillance. Children themselves do not appreciate the 
        surveillance that accompanies highly personalized ads--when 
        they understand how targeted ads work, teens and older kids 
        repeatedly describe them as ``creepy,'' ``distracting and 
        irritating'', saying ``[i]t feels like they're stalking you.'' 
        xlv The constant profiling that accompanies 
        behavioral ad targeting, and targeted ads themselves, do a 
        disservice to kids by potentially labeling and limiting them. 
        Young people's choices and their autonomy may be constrained 
        and shaped by coercive techniques that only show them certain 
        opportunities but not others--as with, for example, women being 
        shown fewer prestigious job offers in search results 
        xlvi--and by algorithmic profiling that builds in 
        bias when determining whether to, say, admit students into 
        educational programs.xlvii This can cause young 
        people to limit themselves too. When kids know all their 
        activities are being monitored by surveillance technologies, 
        research shows they are less likely to engage in critical 
        thinking, political activity, or questioning of 
        authority.xlviii
---------------------------------------------------------------------------
    \xlv\ Data Protection Commission, (January 28, 2019) Know Your 
Rights and Have Your Say! Stream Two of the DPC's Public Consultation 
on the Processing of Children's Personal Data and the Rights of 
Children as Data Subjects under the GDPR; (July 29,2019) ``Some stuff 
you just want to keep private!''--Preliminary report on Stream II of 
the DPC's consultation on the processing of children's personal data 
and the rights of children as data subjects under the GDPR.
    \xlvi\ Gibbs, S. (July 8, 2015). ``Women less likely to be shown 
ads for high-paid jobs on Google, study shows,'' The Guardian.
    \xlvii\ Richardson, R., & Miller, M. L. (Jan. 13, 2021). ``The 
higher education industry is embracing predatory and discriminatory 
student data practices,'' Slate.
    \xlviii\ Brown, D. H., & Pecora, N. (2014). ``Online data privacy 
as a children's media right: Toward global policy principles,'' Journal 
of Children and Media, 8(2), p. 201-207.

   Compulsive Usage. Compulsive online use is also a problem 
        many families struggle to address. Design techniques including 
        ads that push more digital content, such as by offering rewards 
        in exchange for ad viewing, are a culprit. And such ads appear 
        for even the youngest users--in popular Google Play apps for 
        children under five, children were offered ads to view in 
        exchange for game tokens or making advancement in a game 
        easier.xlix This type of manipulative marketing can 
        keep kids stuck in a never ending loop.
---------------------------------------------------------------------------
    \xlix\ Meyer M, Adkins V, Yuan N, Weeks HM, Chang YJ, Radesky J. 
(January 2019). ``Advertising in young children's apps: A content 
analysis,'' Journal of Developmental & Behavioral Pediatrics. 40(1), p. 
32-9. American Academy of Pediatrics. (July 2020). Policy Statement: 
Digital Advertising to Children, https://doi.org/10.1542/peds.2020-
1681.
---------------------------------------------------------------------------
D. Kids and families deserve better
    Our legislative and regulatory landscape has not kept pace with 
marketing techniques. Practices that would be prohibited on television 
and traditional media run rampant online. Updated and effective 
safeguards are desperately needed.
    First and foremost, Congress and the Administration should ensure 
that the Federal Trade Commission is equipped with adequate resources 
and enforcement authority to police unfair and deceptive marketing--
including practices that violate current FTC Endorsement guidelines. 
But the Commission also needs greater resources and support to 
strengthen the endorsement guidelines, and outline what practices are 
specifically not allow for children and teens (such as endorsements for 
unhealthy food and drink).l Common Sense and other groups 
recently urged Congress to significantly increase appropriations and 
staffing for the FTC.
---------------------------------------------------------------------------
    \l\ Fox Johnson, Ariel. (June 22, 2020). Comments to the Federal 
Trade Commission on Guides Concerning the Use of Endorsements and 
Testimonials in Advertising, Common Sense Media,
---------------------------------------------------------------------------
    Congress should also pass a Children's Television Act for the 
Internet age, and a model exists: the Kids Internet Design and Safety 
or KIDS Act.li Among other things, it would limit kids' 
exposure to marketing and commercialization by creating rules that 
would prevent sites from recommending content that includes host-
selling or influencer marketing, or that involves nicotine, tobacco, or 
alcohol.
---------------------------------------------------------------------------
    \li\ S. 3411, Kids Internet Design and Safety (KIDS) Act, (March 5, 
2020).
---------------------------------------------------------------------------
    And Congress cannot continue to delay in enacting meaningful 
privacy protections, especially for children and teens. In the 
marketing context, behavioral advertising to children and teens should 
be prohibited. The recently introduced bi-partisan COPPA update, the 
Children and Teens Online Privacy Protection Act, would ban behavioral 
ad targeting to children and enact a Digital Marketing Bill of Rights 
for Teens.lii The PRIVCY Act, liii introduced 
just last week in the House, would ban behavioral ad targeting to all 
children and teens. These two privacy bills are excellent models that 
would start to curb commercial surveillance business practices and also 
beef up Federal Trade Commission enforcement and powers.
---------------------------------------------------------------------------
    \lii\ S. 1628, Children and Teens' Online Privacy Protection Act, 
(May 13, 2021).
    \liii\ H. 4801, Protecting the Information of our Vulnerable 
Children and Youth (Kids PRIVCY) Act, (July 29, 2021).
---------------------------------------------------------------------------
    And, while the current research already shows much to be concerned 
about, as marketing techniques advance ever more, independently-funded 
research struggles to keep up. So as to stop playing catch up with the 
industry, we must better understand the relationships between digital 
media use and early and adolescent development. Congress could advance 
this by passing and funding the bi-partisan and bi-cameral Children and 
Media Research Advancement Act (CAMRA).liv
---------------------------------------------------------------------------
    \liv\ S. 971, Children and Media Research Advancement (CAMRA) Act, 
(March 25, 2021).
---------------------------------------------------------------------------
    The challenges posed by online marketing to children is not unique 
to the United States, of course. Congress can find international 
examples of best practices with respect to children and advertising. 
Many countries in Europe prohibit advertising and other practices that 
take advantage of a child's age or credulity. And the UK recently 
proposed major restrictions regarding online advertising of junk food. 
The U.S. would do well to follow suit.lv
---------------------------------------------------------------------------
    \lv\ Steyer, Jim. (May 20, 2021). ``The U.S. needs to take a page 
out of the UK's food advertising book,'' The Sunday Times.
---------------------------------------------------------------------------
Conclusion
    Thank you again for your commitment to understanding how deceptive 
digital marketing practices can cause real harm to kids. Your attention 
to these issues is critical for the health and well-being of all 
children, and your support for new legislative and regulatory tools 
will be particularly important to make a real difference for the way 
our children grow up in on online world.

    Senator Blumenthal. Thank you very much, Ms. Johnson. I am 
told that Commissioner Ohlhausen's audio has been interrupted, 
and so we are going to move to questioning and hope that her 
connection is restored. Let me begin by recalling I think the 
reference that Attorney General Stein made to these products, 
characterizing them as slick, and they are indeed slick. They 
are not only dangerous, but they are slickly presented, and I 
am sure all of us have seen them before. I have been smelling 
this strawberry flavored one and it is very alluring. But not 
only is the pitch made with sleekness and physical 
attractiveness, but also it involves a health benefits pitch.
    And in some ways, that is the most pernicious part of their 
promotional activity. They are directly soliciting people on 
the basis that there are health benefits to this product, and I 
think you can see the suggestion in the Blu advertisement 
behind me. This ad goes even further to make the really 
despicable claim that, ``no one likes a quitter, switch 
today.'' Philip Morris International has attempted to rebrand 
launching the foundation for a smoke free world, as it did in 
2017, all the while rolling out new products like their 
recently heated product.
    Obviously, claims related to health benefits or cessation 
are totally unsubstantiated, but they sought to provide a 
veneer of substantiation by, in effect, buying an issue of a 
journal, the American Journal of Health Behavior, with 11 peer 
reviewed studies. They failed to mention in their public 
release that the company who conducted this research was 
always--also paid to do so by Juul with the goal of providing 
that, ``research in support of,'' Juul's product review at the 
FDA. I am not sure whether they told the FDA about it. I doubt 
it. But essentially they are using the same deceptive practices 
on the FDA that it has used on teens and the public.
    Dr. Jackler, you spoke to these cessation claims in your 
testimony. Can you share how effective these kinds of pitches 
are for current smokers?
    Dr. Jackler. So I care very much about adult smokers, and I 
would love to help them to either quit their product, which is 
best, or to transition to something that is less harmful to 
them. Unfortunately, it is very difficult to cure addiction. 
And e-cigarettes are probably a little bit better than patches 
and gums, the data would show. Data independent of the tobacco 
industry routinely shows maybe 5 or 6 percent with traditional 
nicotine replacement, and maybe as much as 8 or 10 percent with 
electronic cigarettes.
    The only studies that are highly optimistic are those that 
were sponsored by the tobacco company that have commercial 
conflicts of interest, that are trying to make a point to 
support their narrative. You have to counterbalance this, 
however, with the phenomenon of dual use. If you are a smoker, 
there are many places you can't smoke today, can't smoke at a 
restaurant or a bar or your workplace. And what people are 
doing is they are filling in the gaps in nicotine use by using 
other products like e-cigarettes. And what happens is, you 
know, you go to the airport, you can't smoke, you can't smoke 
on the plane, you can't smoke waiting for the bag. That is many 
hours. That helps people to imagine a world without nicotine 
exposure and not.
    So what the people do is they fill in the gaps with e-
cigarettes and actually raise and sustain and deepen their 
addiction. So although there are some benefits to adult 
smokers--and you have to realize most adult smokers want to 
quit and have tried many times but have not been able to 
succeed. Well, the advertisers are very clever. They know if 
they say, use this to quit smoking. It is a drug under the FDA 
rules. So they say, why quit? We didn't say quit. They say, why 
quit? Switch alternative.
    But, you know, smart advertisers can say cessation without 
ever saying it. For example, take an ad that says it worked for 
me. Well, any consumer knows what that means. A lawyer may 
argue it doesn't say it, but it does. Or plan A with an x 
through it and plan B. So there are so many ways to communicate 
that the products intended to substitute for cigarettes, and 
contravene the rules of the FDA, which says you cannot do that 
without being a drug and approved.
    Senator Blumenthal. And all of these pitches have nothing 
to do with children who have never smoked and therefore are not 
trying to switch or quit in any way. The appeal to them 
essentially is to lure them into lifetimes of addiction, and 
smoking eventually, and disease.
    Attorney General Stein, in your consent judgment against 
Juul, you specifically barred Juul from making any comparison 
to cigarettes or any therapeutic claims like cessation claims 
about their products in their advertising. How do you think 
these claims influence North Carolina's smokers and non-smokers 
in their decision to use Juul?
    I am hoping we still have Attorney General Stein. OK. I 
guess we have no remote witnesses at the moment. So let me 
ask----
    Mr. Stein. Senator Blumenthal, can you hear me?
    Senator Blumenthal. I can hear you.
    Mr. Stein. Can you all hear me?
    Senator Blumenthal. Yup, go ahead. You are back. Thank you.
    Ms. Ohlhausen. I can hear you.
    Mr. Stein. I couldn't hear--can you hear me, Senator 
Blumenthal? I know that----
    Senator Blackburn. Yes, we can hear.
    Senator Blumenthal. We can hear, I think both of you 
actually. Attorney General Stein, can you hear me?
    Mr. Stein. Yes, that was not part of--that was not part 
of--we are on a terrible delay, so I will try to approach the 
answer. That was not part of our lawsuit. Our lawsuit focused 
on Juul's marketing, which we believed induced young people to 
become addicted. So we did not engage in an extensive discovery 
on the issue of their health claims.
    Senator Blumenthal. I will go back now to Dr. Jackler and 
ask you one more question. You met with Juul's founders, Adam 
Bowen and James Monsees, regarding their interest in tobacco 
advertising. What do you think the company's founders took away 
from their meeting with you?
    Dr. Jackler. Yes. I met with Mr. Monsees at Juul 
headquarters and had a two-hour long conversation with him. One 
of the first things he said is, you know, thank you so much for 
that wonderful database that you supply online of the history 
of tobacco advertising. He explained and has explained many 
times that there were very good students of the practices of 
the tobacco industry. And when we studied Juul advertising, we 
can see exactly what Mr. Monsees said, which is it was 
inspirational and helpful to him and to his team of creatives 
that created Juul marketing. There are many similarities 
between what Juul uses to market and the way the tobacco 
industry traditionally, particularly in its advertising toward 
underage children.
    Senator Blumenthal. Thank you. I might just say that the ad 
that we displayed, which had the Joe Camel image certainly 
indicated the similarities, and also the set of slides that you 
put up showing the colors and images substantiated it. And the 
history of Big Tobacco certainly indicates that it glamorized 
these products using those images. I will turn to the Ranking 
Member.
    Senator Blackburn. Thank you, Mr. Chairman. And to General 
Stein, we will ask you for a question--a written response. What 
I would like for you to submit to the committee is, in your 
preparation for the lawsuit on the marketing, where did most 
teens learn about e-cigarettes and become drawn to them? I 
would like to know if it was through friends, the vape store, 
online. But you can submit that in writing since we have audio 
issues.
    Ms. Fox Johnson, to you, the filter bubble. This is 
something we had legislation on last year dealing with the 
filter bubble. Chairman Blumenthal and I both sponsored the 
Transparency Act, which would require big tech companies to 
give consumers the option to see content outside that curated 
bubble. We know from the American Academy of Pediatrics that 
this filter bubble is particularly dangerous for children.
    So I would love for you to talk about the filter bubble for 
just a second, why kids need to see something that is outside 
of their curated bubble, and if you think that parents, and 
some grandparents and parents, have the tools that they need to 
keep kids from harmful algorithms and tailored ads?
    Ms. Johnson. Sure, thank you, Senator Blackburn, and thank 
you for your bipartisan leadership on this issue. I was excited 
to see so many co-authors of the Filter Bubble Act are on the 
subcommittee. Think secret algorithms determining what content 
and advertising children see and what filters they will be 
placed in are a huge problem. This is happening unbeknownst to 
kids. This is happening unbeknownst to parents.
    In all other aspects of our children's lives, we encourage 
them to try new things, to learn about different cultures, to 
learn about different experiences, figure out what they like. 
And we try not to label and limit them and sort of determine--
predetermine what their reality will be. But that is exactly 
what a filter bubble does. So I think it is excellent to have 
more transparency and to ensure that there are unfiltered 
options.
    And ideally, companies would take it upon themselves to 
offer particularly vulnerable young users an unfiltered 
experience by default. You wanted to know about parental 
controls with respect to advertising or algorithms. Right now, 
there really aren't that many parental controls with respect to 
advertising or algorithms. You can try to keep your kid from 
seeing certain, you know, inappropriate content or websites, 
but if you want to block them from seeing ads, you just have to 
stop them from looking at devices or sites and services in the 
first place.
    There is really--if you turn on too many ad blockers, which 
are not parental controls, just general ad blockers, oftentimes 
these sites and services won't work. So this is not something 
that parents or grandparents can take into their own hands 
right now.
    Senator Blackburn. When we look, and you mentioned the 
settlement that YouTube paid to the FTC, and for collecting 
data on children without the parents' consent--and the way 
YouTube shows ads to little kids, to me, this is something that 
is disgusting. And I would love to hear from you what policies 
you think Congress should move forward with in protecting 
children?
    And then likewise, when it comes to COPPA, which needs to 
be reviewed and rewritten, what are insertions or changes that 
could be made there? And Commissioner Ohlhausen, and I know 
that you--we will send this one to you in writing, what you 
think we should do in revisiting COPPA and updating that. Go 
ahead, Ms. Johnson.
    Ms. Johnson. Thank you, Senator Blackburn. So, yes, YouTube 
settled with the FTC because it was collecting information from 
watchers of child nursery rhyme and other child directed 
content videos and using that information to serve up 
behaviorally targeted advertisements to children and sort of 
determine what future content might be attractive and increase 
profits that way. This settlement highlighted a lot of ways 
that we could improve the landscape for kids' privacy.
    First, for years YouTube was able to say, no, we don't have 
actual knowledge that these are children watching these videos. 
So one thing to do is to make very clear that COPPA covers all 
sites and services that children are using and that we don't 
need to have to narrow a standard and companies can't turn a 
blind eye to kids. We should also improve privacy by protecting 
teenagers, especially young teenagers.
    Another thing Congress could do is confirm what the FTC has 
decided in its current rule that personal information needs to 
be defined broadly and include persistent identifiers. This was 
not something that was considered personal information back in 
the 90s when COPPA was passed. But most modern privacy 
proposals do consider it now. We also need stronger enforcement 
and real penalties.
    State Attorney Generals should be able to get penalties 
just like the FTC can when they are enforcing COPPA and there 
should be minimum penalties. We need penalties that are 
sufficient to deter bad actors, so they don't profit and see 
this as a cost of doing business or a slap on the wrist. We 
also need to give the FTC more resources.
    Common Sense and other advocates have asked for a 50 
percent boost in resources. They are trying to keep up, but 
they do struggle when faced with big tech.
    Senator Blackburn. Excellent. That is helpful. I am over my 
time. I would like to hear from you--you can submit this in 
writing. You mentioned the ads that give you tokens for games, 
things of that nature. And as we look at the entertainment 
software, I would love to know who has engaged in that. And, 
Mr. Chairman, with that, I will yield back.
    Senator Blumenthal. Thanks so much, Senator Blackburn. 
Senator Lee.

                  STATEMENT OF HON. MIKE LEE, 
                     U.S. SENATOR FROM UTAH

    Senator Lee. Thank you, Mr. Chairman. Ms. Johnson, I would 
like to start with you if possible. I have long been concerned 
about how various companies operating online are targeting 
adult themed ads to children, sometimes to young children, but 
in many, many instances to minors in one way or another. In 
your research, what can you tell me about the sexually explicit 
or adult themed advertisements that are targeted to children, 
and about what harms the children experience as a result of 
those?
    Ms. Johnson. Sure, thank you, Senator. So as you mentioned, 
children, teens, older children, tweens, everyone is seeing and 
content in ads that are age inappropriate. And in a Common 
Sense study looking at YouTube, for example, they saw that for 
videos viewed by children under eight, one in five contained 
ads that were not age appropriate, including sexual content, 
you know, benign things like ads for lingerie or something less 
benign. If you think that is benign for a 5-year old. It is 
pretty common for older tweens and teens to also come across 
sexual content.
    A recent study came out where users identified as around 13 
years old and were almost immediately, especially if they were 
boys, targeted with what appeared to be sort of escort services 
and ads. This is a real problem, however it is happening. 
Parents often don't know that these things are happening. Kids 
are watching on small screens, they are watching in their 
bedrooms. It is not everyone watching together in the family 
television.
    So parents aren't there to know what is going on and to 
help stop it. As discussed with Senator Blackburn, they are 
often not ways to filter through these things or to turn them 
off. And kids and teens are getting exposed to more content 
than many of us would like them to at a very young age.
    Senator Lee. Aside from--outside the context of COPPA, is 
there anything you think we ought to focus on--that we could do 
about it?
    Ms. Johnson. Sure, I think that we should also pass sort of 
a children's television act for the digital age, like the KIDS 
Act, which Senator Markey and Blumenthal introduced last year, 
and that would create some advertising and some content rules 
around content and address sort of compulsive aspects and 
manipulate design in games. I also think we need more research 
into how media and tech are affecting kids, all kinds of 
things. And for that, we would love to point to the bipartisan 
Camera Act, which would support NIH funded research.
    Senator Lee. Thank you. That is helpful. There have been 
countless stories about how the various platforms, including 
YouTube, Snapchat, Facebook, Instagram, and so forth can end up 
facilitating child exploitation and also provide easy access to 
child pornography. Each of these platforms have an app 
available through the Apple App Store and the Google Play 
store.
    And those stores, in turn, have age ratings to help guide 
consumers to age appropriate content. But why is it--why is it 
that there is sometimes such a disparity between the App's 
rating and the content that may be available on that platform?
    Ms. Johnson. That is an excellent question, Senator, and 
one that is probably best directed to the platforms or the 
content creators themselves. It is something that we have 
struggled with for video games also and with apps that they 
will have one age rating and they will have a different privacy 
age rating and then they will have a different content rating. 
And it is pretty opaque, like a lot of the tech practices. And 
it is certainly something that for parents who are trying to 
pick something for their kids, they would be much helped by 
having at least one single reliable rating.
    Senator Lee. Right. Yes, it is interesting when I have had 
this conversation with many of the people running some of these 
businesses, very often their answer is similar to yours. Now, 
in your case, you don't run them. You are on the outside trying 
to make a difference.
    For those companies that are actually running them, I find 
the answer less than satisfying. What do you think we ought to 
consider? Is that something we ought to look at as a Congress 
in figuring out whether there are ways to ensure the 
transparency of the operating system and provide some clarity 
on the content that may be available for those platforms, and 
whether it is consistent with the age appropriateness rating?
    Ms. Johnson. I think that is definitely something to look 
at. I think the platforms and app stores play a huge gatekeeper 
role in determining what can be shown and how it is going to be 
pushed on families and sold to different audiences. And so if 
there was a--it is not fair to put something in the designed 
for families section of the Google Play store if it is not 
actually designed for families, for example, in Common Sense's 
opinion or a similar story on Apple.
    So if we could get gatekeepers to come together and agree 
on some basic standards and communicate those transparently, 
that would be very helpful. They also need to clean up the 
underlying practices, but transparency is great too.
    Senator Lee. Great. Thank you. Mr. Chairman, I see my time 
has expired. I did have some additional questions I wanted to 
ask to Commissioner Ohlhausen but given the time and the 
communications hiccups that we have got, I will submit those 
for the record.
    Senator Blumenthal. Thanks very much, Senator Lee. We are 
still hoping that maybe we will correct the technical failure, 
but I think submitting them in writing, and I have some as 
well. I have a few more questions, so maybe we will do a second 
round. When we planned this hearing, we did not expect to be in 
the middle of the infrastructure votes and a lot else that is 
going on. So colleagues are very busy this afternoon, but I 
wanted to come back to the social media issue because social 
media is such a powerful tool. Juul knew it, and so they paid 
online influencers and celebrities to message the coolness 
factor of Juul in a very personalized way.
    In 2015, they posted on their websites looking for 
candidates to fill intern positions that would liaison with 
social media and influencers and celebrities, and an 
application on their portal for those looking to join the Juul 
influencers, as they put it, ``join the Juul influencers'' and 
receive compensation. They also began tagging their own images 
and those of their influencers on social media with a multitude 
of hashtags related to Juul like #juullife, #juulvapor, 
#vapourised, #join, and they tagged their posts with those 
seemingly innocuous hashtags.
    #technology, #art, to expand their brand's reach. They were 
ingenious and innovative in the use of social media so that 
kids weren't just Juuling, they were, ``hashtag Juuling.'' And 
I want to show one of those influencers here. This visual is of 
an influencer who was paid $1,000 to post about Juul. She has 
since publicly spoken about her experience working with the 
company.
    And I would like to ask you, Dr. Jackler, you cited a 2019 
report on Juul's advertising. The company's own social media 
consultants address the strength of this strategy in a case 
study submitted to Juul. And they said, ``we created ridiculous 
enthusiasm for the hashtag vaporized, and deployed rich 
experiential activations and brand of sponsorship strategy that 
align perfectly with those we knew would be our best 
customers.''
    I suppose their words speak for themselves. But as you have 
laid out, and you shared in your research, what was the result 
of this hashtag campaign? Was it effective? Did it have the 
impact that they thought it would? And I am going to ask Dr. 
Johnson more or less the same question, so go ahead.
    Dr. Jackler. You know, Juul saw itself as a technology 
company. It was, in fact, of course, a tobacco company, but it 
saw itself as a technology company. But because it was selling 
nicotine, the tobacco product, it couldn't pay for ads on 
Facebook or Instagram or YouTube, but instead they set about to 
do it for free or so-called organic marketing. They created 
their own channels. They created their own identities. And they 
wanted what they termed digital domination. They really saw the 
modern way to do it.
    And so one of the key differences in the advertising of 
Juul and Marlboro, for example, they looked very similar in 
many ways in terms of the content of the ads, if you look at 
them side by side, but the channels they use were different. So 
the traditional tobacco ads, TV, radio, magazines and 
newspapers, right. But Juul did it through social media. Why? 
First, as a startup, it couldn't afford to advertise--and it 
could advertise on TV because of a loophole, and e-cigarette 
brands do advertise on TV, in fact. And Juul did advertise on 
radio, but in fact, that is expensive. So instead, they just 
did it for free on social media and they did it in an enormous 
impact.
    So much so that they triggered what is called viral 
marketing. Viral marketing is to get your customers or even 
people that see your ads to talk about it and to get word of 
mouth, so-called electronic word of mouth. And it goes out in 
spheres beyond that and amplifies and eventually it becomes a 
fad. And Juul became a huge fad, the must do thing among 
teenagers in America. And that after a while, Juul could turn 
off its social media when it was under intense regulatory 
scrutiny.
    And Scott Gottlieb at the FDA was calling them in and 
writing them harsh letters about the social media. Juul said, 
we are going to be fine now. They turned it off. But what teens 
most listened to are other teens. And social media chatter 
around Juul, it became the thing. So #juul, which is a huge 
amplifier of its Instagram and other accounts, teens would post 
up things not only about vaping or tobacco use, but it became 
the place to be. It was the home for teens. Many industries 
would like to have such a viral fad, like pet rocks or hula 
hoops, were in the day. Juul accomplished it and it was by 
engineering and by design. It was not an accident and they 
succeeded beyond their wildest dreams.
    But once they saw what was happening in the social media 
sphere and the huge interest in Juul by teens, they took no 
action to inhibit it. Only until parents all over America rose 
up, and again, we started to see action by regulators against 
them. Then they said, OK, but it was too late at that point 
because it is like you push a boulder downhill, it goes faster 
and faster and at a certain point it is out of your control. 
And they had plenty of things they could have done from the 
beginning in their design.
    And at many times there were circuit breakers they could 
have put in. But the money was rolling in and they had a choice 
between the well-being of the youth of America or windfall 
profits and a valuation that approach $30 billion for a few 
year startup. And they chose the money over concern over their 
customers.
    Senator Blumenthal. Thank you. Ms. Johnson.
    Ms. Johnson. Thank you. Sort of similar things as to teens 
are particularly susceptible to influencer marketing. They 
often don't realize that influencers are paid. Influencers 
don't appropriately disclose that they are being paid. Teens 
are at a place where they are looking to peers and others to 
define themselves. They want to fit in. They want to do what 
other people are doing. This is why platforms social proof 
their products.
    And teens have developed para-social relationships, one 
sided relationships where they feel uniquely connected to an 
influencer. So this is someone that they trust, they respect, 
they admire, they aspire to be like that person. So whatever 
they are seeing an influencer do online, they are particularly 
receptive to it and to doing it themselves.
    Senator Blumenthal. Thank you. Evidently, we now have both 
former Chairman Ohlhausen and Attorney General Stein connected 
again. Ms. Ohlhausen, maybe we could turn to you for your 
opening statement. Then I am going to go to Senator Markey for 
his questions.

 STATEMENT OF MAUREEN OHLHAUSEN, FORMER ACTING CHAIR, FEDERAL 
                        TRADE COMMISSION

    Ms. Ohlhausen. Great. Thank you. I would like to thank 
subcommittee Chairman Blumenthal, Ranking Member Blackburn, and 
the members of the Subcommittee for inviting me to testify at 
this hearing on toxic marketing claims and their dangers. It is 
my hope that I can offer some helpful perspective as Former 
Acting Chairman and Commissioner of the Federal Trade 
Commission and a longtime consumer protection practitioner. In 
its consumer protection mission, the FTC enforces laws that 
prohibit business practices that are unfair or deceptive to 
consumers.
    The Commission defines deceptive advertising practices as 
those involving a material representation, omission, or 
practice that is likely to mislead a consumer acting reasonably 
in the circumstances. And an actor's practice is unfair if it 
causes or is likely to cause substantial injury to consumers, 
which is not reasonably avoidable by the consumers themselves 
and not outweighed by countervailing benefits to consumers or 
competition. The FTC general rules relating to advertising are 
fairly straightforward.
    First, marketers must not mislead consumers. And second, 
claims made about product attributes must be substantiated 
before they are made. In addition, marketers must avoid 
advertising that causes substantial injury that a consumer 
cannot avoid, such as by following clear and prominent warnings 
and disclosures. So I will expand briefly on some of the 
concepts that underlie these general requirements. First, the 
Commission reviews advertising from the perspective of a 
reasonable consumer in the target group. For example, for 
advertising to children, the FTC will review the ad from the 
perspective of a reasonable child.
    Second, the Commission is concerned about both express and 
implied claims made in ads, including claims that relate to 
safety. Third, some advertising may be interpreted in a variety 
of ways. If a deceptive interpretation is a reasonable one, the 
company may be held liable.
    Finally, an advertiser can deceive a consumer by what it 
doesn't say as well as what it does say, and if they omit 
information that is material in light of the representations 
made in the ad, then that ad is deceptive. Under the FTC's 
advertising substantiation policy, every objective product 
claim, whether express or implied, must be supported by 
evidence providing a reasonable basis for the claim. If the 
entity makes a safety claim in its advertising, that safety 
claim must be supported by evidence.
    And in some cases, an advertiser may be required to possess 
clinical testing or other scientific evidence that 
substantiates the claim. So as for unfairness, as already 
noted, an unfair act or practice is one that causes substantial 
injury, consumer injury that is not reasonably avoidable, and 
it is not outweighed by any countervailing benefits to 
consumers or competition. And with respect to unfair 
advertising, the classic example was the promotion of razor 
blades by placing the products themselves in the comics section 
of the Sunday paper. And the Commission alleged that this 
practice created a substantial and unjustified risk of injury 
to children.
    So certain products may be safe or legal for adults, but 
not children. And the FTC has used its unfairness authority to 
bring enforcement actions where such products are marketed to 
children. So I would like to finish my testimony with the 
discussion of an FTC action during my tenure involving the 
marketing of nicotine products in an unsafe manner. So, as 
previously mentioned, the FTC's law enforcement activities 
involving tobacco advertising date back to the 1930s.
    And the Commission also publishes periodic reports on 
promotion activities in the cigarette and smokeless tobacco 
industries. And it recently announced that it would begin 
collecting such information for e-cigarettes. And near the end 
of my tenure as Acting Chairman, the FTC, jointly with the FDA, 
so it was myself and Dr. Gottlieb, issued warning letters to 
manufacturers, distributors, and retailers for selling e-
liquids used in e-cigarettes with labeling and advertising that 
resembled kid friendly food products such as juice boxes, 
candies, or cookies, and some of them with cartoon like 
imagery.
    And several of these companies were also cited for 
illegally selling those products to minors. And given the 
serious risk of child poisonings due to ingestion of liquid 
nicotine, we stated that marketing these products and packaging 
that is likely to be particularly appealing to young children 
could present an unwarranted risk to health or safety and could 
thus be an unfair advertising practice under the FTC Act.
    So thank you for the opportunity to discuss how my former 
agency has long used its authority to challenge deceptive and 
unfair marketing claims that raise health and safety issues, 
particularly for children. And I look forward to your 
questions.
    [The prepared statement of Ms. Ohlhausen follows:]

Prepared Statement of Maureen K. Ohlhausen, Partner, Baker Botts L.L.P.
Introduction
    I would like to thank Subcommittee Chairman Blumenthal, Ranking 
Member Blackburn, and the members of the Subcommittee for inviting me 
to testify at this hearing on Toxic Marketing Claims and their Dangers. 
I commend you for examining these issues that affect American consumers 
and the interests of U.S. businesses. It is my hope that I can offer 
some helpful perspective, as former Acting Chairman and Commissioner of 
the Federal Trade Commission and a longtime consumer protection 
practitioner, that will assist the Committee with this important 
effort.
    The FTC is a highly productive, independent agency with a broad 
mission to both protect consumers and maintain competition in most 
sectors of the economy. In fulfilling its consumer protection mission, 
the agency enforces laws that prohibit business practices that are 
unfair or deceptive to consumers, being mindful not to impede 
legitimate business activity. Deceptive practices are defined in the 
Commission's Policy Statement on Deception \1\ as involving a material 
representation, omission or practice that is likely to mislead a 
consumer acting reasonably in the circumstances. An act or practice is 
``unfair'' if it ``causes or is likely to cause substantial injury to 
consumers which is not reasonably avoidable by consumers themselves and 
not outweighed by countervailing benefits to consumers or to 
competition.'' \2\ The Subcommittee may find it interesting that the 
FTC's Unfairness Policy statement was developed in a proceeding 
involving a product, tractors, that could be dangerous if operated 
without certain precautions.\3\
---------------------------------------------------------------------------
    \1\ FED. TRADE COMM'N, FTC POLICY STATEMENT ON DECEPTION (1983), 
appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 174 (1984), 
https://www.ftc.gov/system/files/documents/public_statements/410531/
831014deceptionstmt.pdf.
    \2\ 15 U.S.C. Sec. 45(n).
    \3\ FED. TRADE COMM'N., COMMISSION STATEMENT OF POLICY ON THE SCOPE 
OF THE CONSUMER UNFAIRNESS JURISDICTION (1980) appended to Int'l 
Harvester Co., 104 F.T.C. 949, 1070 (1984), https://www.ftc.gov/public-
statements/1980/12/ftc-policy-statement-unfairness. In the case, the 
Commission found that the defendant's failure to disclose to customers 
the risk of fuel geysering in tractors was unfair under Section 5 of 
the FTC Act and required the defendant to provide prominent notice to 
tractor purchasers about these risks.
---------------------------------------------------------------------------
    As part of the its authority to stop deceptive and unfair 
practices, the Commission oversees national advertising of a wide 
variety of products in a wide variety of formats, including online, 
television, print, and radio advertising, as well as a product's 
labeling and packaging, point of sale displays, and statements in 
brochures. The FTC's general rules relating to advertising are 
straightforward: first, marketers must not mislead consumers; and 
second, claims made about certain product attributes must be 
substantiated before they are made. In addition, marketers must avoid 
advertising or marketing that causes substantial injury that a consumer 
cannot avoid, such as by following clear and prominent warnings and 
disclosures.
    It may be useful to expand on some of the concepts that underlie 
these general requirements. With respect to the FTC's Deception 
Analysis, there are several principles to keep in mind. First, the 
Commission reviews advertising from the perspective of a reasonable 
consumer in the target group. For example, for advertising to children, 
the FTC will review the advertisement from the perspective of a 
reasonable child. Second, the Commission is concerned about both 
express and implied claims made in advertising--including claims that 
relate to the safety characteristics of products. Third, the deceptive 
interpretation of the ad does not have to be the only interpretation 
for the ad to be found deceptive. Some advertising may be interpreted 
in a variety of ways. If a deceptive interpretation is a reasonable 
one, the company may be held liable. Finally, an advertiser can deceive 
a consumer by what it doesn't say as well as what it does say. If they 
omit information from advertising and marketing that is material in 
light of the representations made in the ad, then it is deceptive.
    I will turn now to the FTC Advertising Substantiation Policy. Under 
this doctrine, every objective product claim, whether express or 
implied, must be supported by evidence providing a reasonable basis for 
the claim. If an entity makes a safety claim in its advertising, that 
safety claim must be supported.
    The amount and type of evidence required to support a reasonable 
basis claim depends on a number of factors, including what experts in 
the relevant scientific or technical field believe is reasonable. For 
some claims--for example, representations about the health benefits of 
a particular product--an advertiser may be required to possess clinical 
testing or other scientific evidence that substantiates the claim. To 
qualify as a reasonable basis, the tests or studies relied upon to 
support the claims must have been conducted and evaluated in an 
objective manner. In addition, the tests must have been done by 
qualified persons, using procedures generally accepted in the 
scientific community as giving accurate and reliable results.
    I will next turn to the FTC's Unfairness jurisdiction. As noted 
above, an unfair act or practice is one that causes substantial 
consumer injury that is not reasonably avoidable and is not outweighed 
by any countervailing benefits to consumers or competition. With 
respect to unfair advertising, the classic example was the promotion of 
razor blades by placing the products themselves in the comics section 
of the Sunday paper. The Commission alleged that this practice created 
a substantial and unjustified risk of injury to children. Certain 
products may be safe or legal for adults, but not children, and the FTC 
has used it unfairness authority to bring enforcement actions where 
such products are marketed to children.
    This brings me to the topic of today's hearing, which is dangerous 
marketing claims. I would like to provide a few examples over the years 
in which the FTC has used its deception and unfairness authority to 
bring cases where safety was featured prominently in the product's 
advertising. In one case, the Commission issued a complaint charging 
manufacturers of add-on braking devices with making deceptive safety 
claims for their products. Specifically, the Commission alleged that 
the companies claimed, falsely, that their products were equivalent to, 
and offered the same safety benefits as, anti-lock braking systems--
commonly known as ``ABS''--that are factory installed equipment on many 
cars.\4\ In reality, these add-on aftermarket devices were 
substantially different in design and operation from true ABS 
equipment, and do not provide the same safety benefits. The Commission 
eventually reached a settlement with the defendants that bars them from 
making false or unsubstantiated claims about any aftermarket braking 
product and requires that they have substantiation for any claims for 
braking devices. The settlement also required the defendant to serve 
its distributors with a summary of the order and to take reasonable 
steps to ensure they comply with the order.
---------------------------------------------------------------------------
    \4\ Press Release, FTC, Aftermarket Brake Marketer Settles FTC 
Charges (July 23, 2003), https://www.ftc.gov/news-events/press-
releases/2003/07/aftermarket-brake-marketer-settles-ftc-charges.
---------------------------------------------------------------------------
    Because cases that involve deceptive safety or health claims 
clearly have the greatest potential for serious consumer injury, the 
FTC will often impose specially crafted remedies in them. For example, 
the FTC has required companies to send consumers who have purchased the 
product a safety notice to alert the consumer of the Commission action 
and to correct any misimpression about claimed safety benefits. It has 
also required companies to modify trade names where the name clearly 
communicates a safety claim, and disclosure alone cannot cure that 
impression. For example, in the add-on brake case mentioned above, the 
companies use the initials ``ABS'' as part of their product name and 
the FTC sought to prohibit this use and required companies to include 
corrective disclosures in future advertising and packaging materials.
    Of course, the FTC is not the only government agency concerned 
about truthful claims and the Commission routinely cooperates with 
other Federal agencies, as well as state and local enforcement 
officials. This is particularly true in cases that involve health or 
safety claims, where the FTC will rely on the expertise of such 
agencies as the CPSC, the EPA, and the FDA to help it analyze the 
validity of the underlying claim. Indeed, many of the FTC cases are 
initiated by referrals from other agencies.
    I would like to finish with a discussion of two FTC actions in 
which I was personally involved, and which bracketed my tenure as a 
Commissioner, from 2012 to 2018.
    In August 2012, the Commission announced a settlement with the 
marketers of the Brain-Pad mouth guard.\5\ The Commission's complaint 
alleged that Brain-Pad, Inc. lacked a reasonable basis for their claims 
that Brain-Pad mouth guards reduced the risk of concussions, especially 
those caused by lower jaw impacts, and that they had falsely claimed 
that scientific studies proved that those mouth guards did so. The 
final Order in that case prohibited the Respondents from representing 
that any mouth guard or other equipment used in athletic activities to 
protect the brain will reduce the risk of concussions, unless that 
claim is true and substantiated by competent and reliable scientific 
evidence. The Order also prohibited them from misrepresenting the 
results of any tests or studies on such products, and from 
misrepresenting the health benefits of such products. As the Director 
of the FTC's Bureau of Consumer Protection noted when the settlement 
was announced, ``Mouthguards can help to shield a person's teeth from 
being injured, and some can reduce impact to the lower jaw. But it's a 
big leap to say these devices can also reduce the risk of concussions. 
The scientific evidence to make that claim just isn't adequate.'' When 
the Brain-Pad Order became final in November 2012, Commission staff 
sent out warning letters to nearly 20 other manufacturers of sports 
equipment, advising them of the Brain-Pad settlement and warning them 
that they might be making deceptive concussion protection claims for 
their products. FTC staff then monitored the websites of these 
manufacturers, working with them as necessary to modify the claims on 
their sites and, in some cases, ensure that necessary disclosures were 
clear and prominent.
---------------------------------------------------------------------------
    \5\ Press Release, FTC, Settlement with FTC Prohibits Marketer 
Brain-Pad, Inc. from Claiming that Its Mouthguards Can Reduce Risk of 
Concussions (Aug. 16, 2012), https://www.ftc.gov/news-events/press-
releases/2012/08/settlement-ftc-prohibits-marketer-brain-pad-inc-
claiming-its.
---------------------------------------------------------------------------
    The second matter I would like to discuss involved the marketing of 
nicotine products. The FTC's law enforcement activities involving 
tobacco advertising and promotion date back to the 1930s, and the 
agency has played an important role in the adoption of requirements for 
warning labels on tobacco products. The Commission also publishes 
periodic reports on advertising and promotion activities in the 
cigarette and smokeless tobacco industries, which provide information 
on sales and on expenditures for various categories of marketing 
expenditures. The FTC recently announced that it would begin collecting 
such information for e-cigarettes.\6\
---------------------------------------------------------------------------
    \6\ FTC, Statement of the Federal Trade Commission Concerning 
Cigarette and Smokeless Tobacco 6(b) Orders (Feb. 25, 2019), https://
www.ftc.gov/system/files/documents/public_state
ments/1462887/e-cigarette_commission_statement_2-25-19.pdf.
---------------------------------------------------------------------------
    As with other products, the Commission's primary role for tobacco-
related products is to ensure that products are marketed in a manner 
that is truthful, not misleading, and adequately substantiated. The 
Commission does not pre-screen advertising claims for tobacco-related 
products or any other product. Instead, the agency addresses deception 
in the marketing of tobacco-related products largely through post-
market law enforcement actions targeted against specific false or 
misleading claims or unfair practices, just as it does for other 
products.
    Near the end of my tenure as Acting Chairman, in May 2018, the FTC, 
jointly with the U.S. Food and Drug Administration (FDA) issued warning 
letters to manufacturers, distributors, and retailers for selling e-
liquids used in e-cigarettes with labeling and/or advertising that 
resemble kid-friendly food products, such as juice boxes, candies, or 
cookies, some of them with cartoon-like imagery.\7\ Several of the 
companies receiving warning letters also were cited for illegally 
selling the products to minors.
---------------------------------------------------------------------------
    \7\ Press Release, FTC, FTC, FDA Take Action Against Companies 
Marketing E-liquids That Resemble Children's Juice Boxes, Candies, and 
Cookies (May 1, 2018), https://www.ftc.gov/news-events/press-releases/
2018/05/ftc-fda-take-action-against-companies-marketing-e-liquids.
---------------------------------------------------------------------------
    Some examples of the products outlined in the warning letters, and 
being sold through multiple online retailers, include: ``One Mad Hit 
Juice Box,'' which resembles children's apple juice boxes, such as Tree 
Top-brand juice boxes; ``Vape Heads Sour Smurf Sauce,'' which resembles 
War Heads candy; and ``V'Nilla Cookies & Milk,'' which resembles Nilla 
Wafer and Golden Oreo cookies. Other products include ``Whip'd 
Strawberry,'' which resembles Reddi-wip dairy whipped topping, and 
``Twirly Pop,'' which not only resembles a Unicorn Pop lollipop but is 
shipped with one.
    Given the serious risk of child poisonings due to ingestion of 
liquid nicotine, we stated that marketing these products in packaging 
that is likely to be particularly appealing to young children could 
present an unwarranted risk to health or safety and could thus be an 
unfair advertising practice under the FTC Act.
Conclusion
    Thank you for the opportunity to discuss how my former agency, the 
FTC, has long used its authority over unfair and deceptive acts and 
practices to challenge deceptive and unfair marketing claims that raise 
health and safety risks. I look forward to your questions.

    Senator Blumenthal. Thank you very much. I would like to 
call on Senator Markey.

               STATEMENT OF HON. EDWARD MARKEY, 
                U.S. SENATOR FROM MASSACHUSETTS

    Senator Markey. Thank you, Mr. Chairman, very much. In 
1990, I wrote the Children's Television Act to put limits on 
the advertising that can appear during kids' television shows. 
And then Congress passed that law and stopped advertisers from 
flooding children with an endless stream of commercials and 
manipulative marketing on TV. And those rules remain critical.
    But no analogous rules exist for the Internet, yet we know 
that today kids face a gauntlet of manipulative advertising 
online. Ms. Fox Johnson, do you agree that Congress needs to 
implement new safeguards to protect children from manipulative 
marketing online?
    Ms. Johnson. Senator Markey, thank you for a long standing 
and steadfast commitment to protecting kids. I definitely agree 
that Congress needs to pass new rules.
    Senator Markey. Thank you. Dr. Jackler?
    Dr. Jackler. Oh, I certainly agree, certainly in the 
tobacco sphere. It has permeated many channels of media which 
are frequented by kids, and that is something that should be 
brought to an end.
    Senator Markey. So kids are just manipulated into buying 
products at every turn on the Internet, which is almost a part 
of the culture of the internet. Do you agree with that?
    Dr. Jackler. I do.
    Senator Markey. Do you agree with that, Ms. Johnson?
    Ms. Johnson. Definitely.
    Senator Markey. Well, that is why Senator Blumenthal and I 
have introduced the Kids Internet Design and Safety Act, the 
KIDS Act, which establishes rules for the road for kids' 
commercial contents on the internet. The bill will stop 
websites from pushing ads to kids that include product 
placement in children's online content, host selling, which is 
when a character in a video that a child is watching appears in 
an ad next to that video, program length advertising, meaning 
commercials that last as long as the actual video a child is 
watching online, and advertisements for dangerous products like 
nicotine and tobacco online. Ms. Johnson, do you agree that 
these safeguards are crucial to protecting children online?
    Ms. Johnson. Senator Markey, I do. We have talked about how 
host selling, and product placement and the pushing of unsafe 
products are particularly pernicious for children online. So 
stopping these practices will go a long way toward protecting 
kids.
    Senator Markey. Dr. Jackler, do you agree?
    Dr. Jackler. Certainly. Products such as tobacco, alcohol, 
things that are inappropriate in terms of sexuality don't 
belong on children's TV. I will note that Juul ads ended up on 
Nickelodeon and on a number of children's math game sites, and 
that really was most inappropriate.
    Senator Markey. Yes, our children deserve information, not 
infomercials. And that is what these companies have figured out 
how to do. You know, the kids are there, they have got them as 
a captive audience on a program that the kids like, whether it 
be Nickelodeon or anything else. Now, why don't we just give 
them a program-length ad as well on a product that we want to 
hoc to them? On channel four, five, seven and nine, that would 
be prohibited, can't do it. Over here on the Internet, it is 
the Wild West, no rules, anything goes, and we just have to end 
that era here in our country.
    Today, companies take every opportunity to hook consumers 
when they are young and make them customers for life. One way 
to do that is targeted ads to children online. I have 
introduced the bipartisan Children and Teens Online Privacy 
Protection Act with Senator Cassidy, and our legislation would 
place an outright ban on targeted marketing directed at 
children, which is inherently manipulative.
    Ms. Johnson, do you agree that any comprehensive Federal 
privacy law must include heightened protections for children 
and teens, including a ban on targeted ads toward kids?
    Ms. Johnson. I do agree, Senator Markey. We have to end 
behavioral ads for children. Kids don't want it. Parents don't 
want it. And it creates--it contributes to a culture of 
surveillance. And also, if we ban targeted ads, we won't just 
have benefits in the marketplace. We will also go a long way 
toward limiting information collection and the profiling of 
kids in the first place.
    Senator Markey. And I know we have had difficulty in 
figuring out what the Privacy Bill of Rights for adults should 
be. But we go Congress after Congress, after Congress, after 
Congress, 2 years, 2 years, 2 years, 2 years, a whole 
generation of kids just grows up with no protections. So I 
don't know if we can do adults, but in this Congress, at least, 
we should be able to do children. Finally give them the 
protections and maybe we will be able to do adults at some 
point. But if we can't, we just--we lose a generation of kids 
every four or 5 years.
    You know, and it just makes no sense whatsoever that we 
don't have those protections in place. So the Child Online 
Privacy Protection Act of 1997 remains the constitution for 
children's privacy. And I was proud to author that law. But 
that only covers kids under 13. We have to raise it to 16. We 
have to have more protections that parents can avail themselves 
of in order to demand that companies just completely and 
totally erase all information that they have gathered about 
children. We need a privacy bill of rights for children in our 
country online. We just saw the pernicious impact during the 
COVID crisis. And as we go back deeper into it, once again, 
more and more children are going to be online more and more of 
the time.
    So if I can, I would just like to ask whether or not we 
should have a complete ban on menthol e-cigarettes. Do you 
agree that we should have a complete ban on it? Attorney 
General Stein, yes or no?
    Mr. Stein. Yes, sir. It is how kids get hooked.
    Senator Markey. And Dr. Jackler, same question.
    Dr. Jackler. Absolutely. Menthol numbs the throat, is minty 
and has long been a leading youth initiation brand. It should 
be banned to protect young people.
    Senator Markey. Thank you. And I know that when I was a 
kid, they tried to hoc something called Kools, which were kind 
of the entry level cigarette for kids, just so they could start 
with something that was more mild. But it was all intended on 
ultimately moving them toward Camels and Chesterfield's and 
Lucky Strikes. Just the whole products introduction to a 12 
year old.
    My father told me when I was 12, I know you are going to 
start--now, I started when I was 12, Eddie, just don't take the 
quarter out of my pockets. Earn the quarter for the cigarettes 
because I know you are going to start smoking. And my father 
knew it. And guess what? These companies know, too. And that is 
why they are marketing to them, because they have a customer 
for life. And ultimately, my father died from lung cancer. But, 
you know, our responsibility is to make sure that we just don't 
allow these kids to get hooked.
    And the FDA has to act. We have to act. We know that if a 
kid doesn't start smoking by the age of 20, the chances of them 
starting to smoke is almost zero. And so that is why they 
target it, otherwise they don't have a long-term business 
model. Thank you, Mr. Chairman, for this very important 
hearing.
    Senator Blumenthal. Thanks, Senator Markey. Senator Lujan.

               STATEMENT OF HON. BEN RAY LUJAN, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Lujan. Thank you, Mr. Chairman, to the Ranking 
Member, for this important hearing. Ms. Johnson, I am concerned 
by the role social media and online advertising played in the 
rise of vaping among teens aged 15 to 17. They are 16 times as 
likely to be current Juul users than their older peers. The 
difference is striking, and the role that marketing and 
advertising played in this rise is undeniable.
    Ads that target and track children are already a problem. 
They follow kids everywhere and target them at an early age. 
But accounts of children being advertised vaping products, 
including on websites designed to help them with their 
homework, are shocking. Kids should be safe from this content 
like that at all times, and we need to get to the bottom of how 
this is happening.
    So when a social media company or advertising platform 
pushes or their algorithms promote this harmful content to 
children, who should be held accountable?
    Ms. Johnson. Thank you, Senator Lujan. I think everyone 
should be held accountable. The social media company, the 
advertisers, the platforms, they are all profiting off of 
pushing this ad to this kid, so they should all be held 
accountable, and they all need to work together to better 
protect children. They are the adults in the room. There are 
multiple adults in the room. And it is not fair for everyone to 
keep disclaiming responsibility or pointing to an algorithm 
they will not explain how it works.
    Senator Lujan. What are your recommendations for the best 
ways to enforce that accountability?
    Ms. Johnson. I think we need rules that put an onus on all 
the parties involved. You know, one criticism of the YouTube 
COPPA settlement we were discussing earlier was that enabled 
YouTube to push a lot of the compliance burden off onto small 
content creators and didn't have requirements for YouTube 
itself to police and verify what content creators were saying 
about their content.
    Advertisers need to be held accountable for how they 
identify their content and what audiences they are trying to 
reach. And platforms and others need to be held accountable for 
verifying advertisers are telling the truth and for not 
enabling and encouraging the targeting of young people 
themselves.
    Senator Lujan. So, Mr. Jackler, the fact that flavored e-
cigarettes remain widely available is also extremely 
concerning. Congress knew the risk of these products when it 
banned most flavors from cigarettes in 2009 and again when it 
extended the ban in 2020. But as you stated in your testimony, 
companies have repeatedly found loopholes to keeping, 
producing, and selling these harmful products, most recently by 
classifying their products as containing, ``tobacco free 
nicotine.''
    These dangerous products they are labeling, it is confusing 
and inconsistent at best. Consumers need a broad solution that 
prevents companies from finding exceptions to requirements that 
are passed by Congress or Federal agencies. Yes or no, is there 
currently a consistent set of rules that apply for allowable 
flavors for all nicotine products?
    Dr. Jackler. [Technical problems.]
    Senator Lujan. Following up on that is, this inconsistency, 
it has been present for over a decade. Why does the United 
States still not have a consistent set of rules across all 
nicotine products, Dr. Jackler?
    Dr. Jackler. Well, that is a question I ask as well. I 
think that there has been a very permissive time over the last 
decade. You know, there has been enormous innovation in the 
nicotine delivery sphere, and that the companies that innovated 
much faster than the regulatory and legislative processes could 
keep up with them, frankly. And I think the other point being 
that the tobacco industry has enormous resources, the smartest 
people to figure out ways around and escaping the intent of 
regulation.
    For over a century, they have routinely escaped every 
attempt to constrain its advertising and finding clever ways 
around it. So I think it is important in fashioning regulations 
and legislation, to do opposition research and think what is 
going to come next? How do we close those gaps? And also when 
there is a problem like the synthetic nicotine loophole that 
could have been closed quickly, but the mechanism to do it 
wasn't easily done, apparently.
    I would--my personal view, and I think many of us believe 
the FDA is very well justified and has the authority, saying 
they are not tobacco products--they claim they are not tobacco 
products. Fine, you are a drug. You are not approved, go off 
the market. You can apply through CDER and become approved that 
way.
    Senator Lujan. And during the 2020 debate on this issue, 
there was a big debate on nicotine. Just looking at that 
narrowly with asking the question, what is the addictive nature 
of these products? And Dr. Jackler, as you pointed out, had 
that also been part of this focus to make it explicitly clear 
whether synthetic as tobacco, had that also been included, that 
loophole would not have existed.
    Dr. Jackler. The nicotine in America is extremely 
permissive. If you look around the world, throughout Europe, 
the U.K., and Israel, it limits it to 17 milligrams per 
millileter--like 2 percent. In America, there is no limit. The 
only practical limit is when it gets too bitter from the 
nicotine. So you have got Juul three times, four times that. 
Potently addictive levels.
    The second thing is you can now get e-cigarettes that are 
these big tanks, that equivalent nicotine delivery of three and 
a half cartons full of Camels or Marlboro. I mean, huge amounts 
of nicotine. There is no way. We need to cap the amount of 
nicotine in these products both by concentration and by volume.
    Senator Lujan. I appreciate that. And, Mr. Chairman, I do 
have a question for Ms. Ohlhausen, and I will submit that into 
the record, bringing attention to rather than for big tobacco 
companies with cigarette sales, now there are many other 
smaller ones that we also need to get some answers to, to see 
how we can be able to enforce that. So I thank you and I yield 
back.
    Senator Blumenthal. Thanks so much, Senator Lujan. We are 
in the middle of a vote, we have two votes, so we are somewhat 
time constrained. I have a question for former Commissioner 
Ohlhausen, and then if the Ranking Member has questions, I will 
turn to her. Could you tell us how the FTC worked with the FDA 
to take action on e-cigarette brands that used kid-friendly or 
kid-alluring products, and what more the FTC can do in that 
regard?
    Ms. Ohlhausen. Thank you, Senator. Yes, we had when I was 
Acting Chairman, carrying on the long tradition of close dialog 
with our sister agencies and the FDA in particular on things 
involving safety and health issues. So when we became aware of 
these kind of product packaging and labeling that have these 
things that appeal greatly to children, juice boxes, cookies, 
things like that, we coordinated and worked, our staffs worked 
together to issue these joint warning letters.
    And then the FDA actually took action against some that had 
sold products to minors that was outside the FTC's authority, 
but the FDA had the authority to take action there. And then 
continue to monitor these websites. I know that the FTC and FDA 
continue to work closely together and jointly did warning 
letters to influencers and marketers after I left the 
Commission in 2019.
    So I believe that that coordination and close dialog 
continues.
    Senator Blumenthal. Thank you. I am going to be asking 
questions for the record as well. This hearing has really been 
excellent. One question that I would appreciate your answering 
is going directly to what the FDA should do about Juul. We have 
until September 9th. This record will be open for 2 weeks, but 
the sooner you can answer that question and if you want to 
offer brief responses now, I would be happy to take them, but 
only if you feel ready to answer that question. Dr. Jackler.
    Dr. Jackler. Juul can make all the arguments that it wants 
about its path forward to the future. But it is a deeply 
tarnished brand with a durable identity as a youth brand. And 
that exists. It is not going to go away. It needs to be sunset. 
The entire industry is the bigger issue. But with regard to 
this particular product, it is too stained by its history and 
by the durable view of it amongst American teens. No matter how 
they dress it up and no matter how much they create scientific 
dialog contrary to that of independent academics and 
Government, it is not going to be persuasive.
    And taking a forward looking approach, ignoring the 
history--because it is not history, it is today. It is actually 
still there, that awareness and the perception of Juul amongst 
American youth. And that can't be cured at this point. It is 
too late. It is too deeply established.
    Senator Blumenthal. Thank you.
    Ms. Johnson. We are deeply concerned about a product that 
is unhealthy and popular with high schoolers and even middle 
schoolers, and we will be happy to submit something to the 
record.
    Senator Blumenthal. Thank you. And Ms. Ohlhausen?
    Ms. Ohlhausen. Yes, I will take the opportunity to also 
submit a response for the record.
    Senator Blumenthal. Thank you. Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman. Just to 
Commissioner Ohlhausen, we would appreciate in getting your 
recommendations on the record as we look at COPPA and the 
updates that needed to be done there.
    Ms. Johnson, I appreciate your comments about the research 
that needs to be done on the effect of this aggressive 
advertising on our children. And we need to find a piece of 
legislation that we can move forward with that. And, Mr. 
Chairman, the only other thing I have is Juul labs did submit a 
letter to us with Chairman Cantwell, and I think we should put 
that into the record.
    Senator Blumenthal. Without objection.
    [The information referred to follows:]

                                                  Juul Labs
                                                      July 30, 2021
By E-mail

Hon. Maria Cantwell, Chair,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.

Re: August 3, 2021 Subcommittee Hearing

Dear Chair Cantwell:

    On behalf of Juul Labs, Inc. (JLI or the Company), I am writing in 
response to your invitation to testify at the August 3, 2021 hearing 
entitled ``Toxic Marketing Claims and Their Dangers.'' We understand 
the Consumer Protection, Product Safety, and Data Security Subcommittee 
is interested in the marketing of electronic nicotine delivery system 
(ENDS) products, including JUUL, and the impact of such marketing in 
the United States and specifically on underage use.
    We appreciate the invitation for our chief executive officer (CEO) 
to testify before the Subcommittee, but must respectfully decline.
    First, our current CEO is not in the best position to speak to 
JLI's historical marketing that interests the Subcommittee. In the fall 
of 2019 with new executive leadership, we fundamentally changed how 
JUUL products are marketed and sold. For example, led by our CEO when 
he joined, we immediately suspended marketing activities across media 
channels and that suspension remains in place today.
    Second, the Company's premarket tobacco product applications 
(PMTAs) for the JUUL System are pending the Food and Drug 
Administration's (FDA or the Agency) science-and evidence-based review 
for new tobacco products. This rigorous review, in addition to the 
scientific research to support the marketing of the product, includes a 
tailored marketing plan and sales restrictions designed to limit 
appeal, restrict access, and mitigate the potential for underage use. 
Based on the totality of evidence in our PMTAs, the Agency will apply 
the statutory standard of ``appropriate for the protection of public 
health'' to determine whether our products meet that burden--accounting 
for both current users of tobacco products and nonusers including those 
underage. Moreover, should it authorize the marketing of our products, 
FDA will impose requirements and restrictions as to their advertising 
and marketing. Given the status of our applications, we seek to 
preserve the integrity of and deference to this regulatory process.\1\
---------------------------------------------------------------------------
    \1\ This position is particularly relevant given that certain 
advocacy groups and members of Congress have attempted to influence 
FDA's independent decision-making process to deny pending PMTAs. See, 
e.g., Press Release, Subcommittee Hearing Offers Insight into Future E-
cigarette Regulation (June 23, 2021), available at https://bit.ly/
3yeUWMZ; Letter from Rep. Wasserman Schultz, et al., to FDA Acting 
Commissioner Woodcock (March 23, 2021), available at https://bit.ly/
3lfh5rc.
---------------------------------------------------------------------------
    To offer context for our approach, we provide information on our 
reset led by our CEO and new executive leadership beginning in the fall 
of 2019, recent positive declines in underage use of ENDS products 
including JUUL, and the science-based PMTA process through which our 
applications are currently under review. We ask that this 
correspondence be included in the record for the Subcommittee's 
hearing.
A Necessary Reset to Advance Tobacco Harm Reduction Responsibly
    Our company and products exist for one purpose: to advance tobacco 
harm reduction, based on science and evidence, by providing adult 
smokers a potentially less harmful alternative to combustible 
cigarettes and reduce the death and disease associated with combustible 
cigarette use.
    This harm-reduction approach is informed by FDA's Comprehensive 
Plan for Tobacco and Nicotine Regulation that focuses on the role of 
nicotine and that it, while addictive, is ``delivered through products 
that represent a continuum of risk and is most harmful when delivered 
through smoke particles in combustible cigarettes.'' \2\ The 
Comprehensive Plan is supported by a science-based, regulatory 
framework that aims to reduce cigarette-related death and disease and 
provide ``potentially less harmful tobacco products [that] could reduce 
risk while delivering satisfying levels of nicotine for adults who 
still need or want it.'' \3\
---------------------------------------------------------------------------
    \2\ FDA, Press Release, FDA Announces Comprehensive Regulatory Plan 
to Shift Trajectory of Tobacco-Related Disease, Death (July 28, 2017).
    \3\ S. Gottlieb, M.D., & M. Zeller, J.D., A Nicotine-Focused 
Framework for Public Health, New Eng. J. of Med. (2017)
---------------------------------------------------------------------------
    Pursuing the Comprehensive Plan is critical because the established 
negative health effects of combustible cigarette use remain staggering 
and consistent. Thirty-four million Americans continue to use 
combustible cigarettes, resulting in approximately 480,000 preventable 
deaths each year.\4\ Cigarette smoking remains attributable to 80-90 
percent of lung-cancer deaths and a key risk factor for other cancers 
and lung and heart disease.\5\ And as we know, it is the combustion 
that kills--the burning of tobacco and inhalation of smoke and 
thousands of toxicants that are the root cause of tobacco-related death 
and disease.\6\ Our products, like other noncombustible alternatives, 
can provide adult smokers--who are unable or unwilling to quit 
nicotine--an off-ramp to combustible use and advance tobacco harm 
reduction. That is our collective public-health opportunity: to 
transition and completely switch currently addicted smokers from 
combustible cigarettes.
---------------------------------------------------------------------------
    \4\ See, Centers for Disease Control and Prevention, Current 
Cigarette Smoking Among Adults in the United States, https://bit.ly/
3xaxjE7.
    \5\ See Centers for Disease Control and Prevention, What Are the 
Risk Factors for Lung Cancer?, https://bit.ly/3y8laRo.
    \6\ See, e.g., U.S. Department of Health and Human Services, A 
Report of the Surgeon General, The Health Consequences of Smoking: 50 
Years of Progress (2014).
---------------------------------------------------------------------------
    However, underage use of ENDS products, including JUUL, puts this 
harm-reduction potential and public-health opportunity at risk. In 
response to increased levels of underage use in the fall of 2019, new 
executive leadership took necessary actions to reset our company and 
product category to combat underage use and earn trust among 
stakeholders. As our CEO testified on February 5, 2020 to the House 
Energy and Commerce Committee, Subcommittee on Oversight and 
Investigations: ``Over the past few years, trust in our company and 
category has eroded. We know some of our past actions have contributed 
to that erosion, and we are committed to taking concrete action to re-
earn trust.''
    This reset included significantly changing the way we market and 
sell our products to limit the appeal of and restrict access to those 
underage. For example:

   We suspended all advertising and promotion of JUUL products 
        through broadcast media (television and radio), print 
        publications, and digital channels (September 2019).

   We refrained from lobbying the Administration on FDA's draft 
        guidance relating to flavor policy for ENDS products and 
        committed to fully support and comply with the final policy 
        when effective (September 2019).

   We voluntarily suspended the sale of all non-tobacco and 
        non-menthol flavored JUUL products in advance of regulatory 
        requirements to do so (November 2019).\7\
---------------------------------------------------------------------------
    \7\ FDA issued final guidance on its policy removing enforcement 
discretion for any flavored, cartridge-based ENDS product (other than 
tobacco or menthol) in January 2020. See FDA, Guidance for Industry: 
Enforcement Priorities for Electronic Nicotine Delivery Systems (ENDS) 
and Other Deemed Products on the Market Without Premarket Authorization 
(Jan. 2020).

    In addition, we restructured our company to focus resources on two 
core tenets: the science and evidence to demonstrate that JUUL products 
are viable, less harmful alternatives for adult smokers and the 
development of technological solutions to combat underage use.
    These actions were in addition to ceasing the marketing of JUUL 
products on social media in November 2018. Although JLI no longer 
advertises or promotes JUUL products on these platforms, we maintain a 
global social-media monitoring program that identifies JUUL-related 
content posted by third parties. When the Company identifies such 
content, we work with platform owners to remove the posts and take 
additional enforcement as needed. Since 2019, we have successfully 
removed over 115,000 posts and over 2,300 accounts impacting over 1.4 
million ``followers.''
    We believe that marketing for ENDS products, like JUUL, requires 
informed and tailored approaches to provide sufficient information to 
adult smokers to transition and switch them completely from combustible 
cigarettes, while limiting appeal and the potential for unintended 
exposure among those underage. We believe our current and future 
practices meet that responsibility.
Encouraging Declines in Underage Use of ENDS Products, But More Work 
        Needs to be Done to Ensure a More Responsible Marketplace
    In addition to interventions like Congress's Tobacco 21 legislation 
and FDA's ongoing enforcement, we believe our actions supported a 
significant decline in underage use in 2020. Based on data from the 
2020 National Youth Tobacco Survey (NYTS) conducted by FDA and the 
Centers for Disease Control and Prevention: The overall prevalence of 
high-school students who used JUUL products as their primary ENDS brand 
in the past 30-days decreased from 16.1 percent in 2019 to 4.9 percent 
in 2020. Among middle-school students, such use decreased from 5.6 
percent in 2019 to 1.6 percent in 2020. Among current users of any ENDS 
product (i.e., of those who used an ENDS product in the past 30-days), 
use of JUUL as their primary brand decreased from 57.4 percent in 2019 
to 26.6 percent in 2020.\8\
---------------------------------------------------------------------------
    \8\ See Centers for Disease Control and Prevention, 2020 NYTS, 
available at https://www.cdc.gov/tobacco/data_statistics/surveys/nyts/
data/index.html; K. Cullen, et al., e-Cigarette Use Among Youth in the 
United States, 2019, JAMA (2019); T. Wang, et al., Characteristics of 
e-Cigarette Use Behaviors U.S. Youth, 2020, JAMA (2021).
    For reference, data from the 2020 NYTS showed a significant decline 
in all ENDS use across high-and middle-school students. Among high-
school students, current use of ENDS (past 30-days) decreased from 27.5 
percent in 2019 to 19.6 percent in 2020, while frequent use of ENDS 
(use on 20 or more days in the past 30-days) decreased from 9.3 percent 
to 7.4 percent. Among middle-school students, current use decreased 
from 10.5 percent in 2019 to 4.7 percent 2020, while frequent use 
decreased from 1.9 percent to 0.9 percent. In total, about 1.8 million 
fewer youth are using ENDS products.
    Use of combustible cigarettes continued to decline to historical 
levels; with current use among high-school students now at 4.6 percent.
---------------------------------------------------------------------------
    Results from the 2020 Monitoring the Future survey, funded by the 
National Institute on Drug Abuse, showed similar declines in JUUL 
product use among adolescents. The overall prevalence of 12th-and 10th-
grade students who used JUUL in the past 30-days decreased from 20 
percent in 2019 to 13 percent in 2020, while daily use (use on 20 or 
more days in the last 30 days) decreased from 6 percent in 2019 to 2 
percent in 2020.\9\ Notably, researchers found:
---------------------------------------------------------------------------
    \9\ See Univ. of Michigan, 2020 Monitoring the Future Survey, 
available at http://monitoringthefuture.org/data/20data.html#2020data-
drugs; R. Miech, et al., Trends in Use and Perceptions of Nicotine 
Vaping Among U.S. Youth from 2017 to 2020, JAMA Pediatrics (2020).

        The study results on vaping brands provide insight into how 
        efforts to restrict access to vaping flavors fared. On the one 
        hand, efforts by some individual companies appear to have been 
        successful in reducing adolescent use of their product. Of 
        particular importance is JUUL Labs, which had the largest 
        market share for vaping products in 2019. It announced in 
        November 2019 that it would voluntarily self-regulate and stop 
        selling all flavors other than tobacco and menthol in light of 
        evidence that other flavors such as mint and mango that it had 
        previously sold were the most commonly used flavors among 
        adolescents. The results from this study show that adolescent 
        use of JUUL subsequently dropped dramatically.\10\
---------------------------------------------------------------------------
    \10\ Id. at E5.

    General declines in underage use, however, are being offset by 
significantly increased use of flavored disposable ENDS products, which 
JLI does not manufacture or market. These products, largely imported 
from Chinese manufacturers, are sold online and at retail in a variety 
of flavors (e.g., Rainbow Candy Ice; Strawberry Watermelon Kiwi; Blue 
Raz) and are marketed across social media and other unrestricted 
channels.
    In the 2020 NYTS, current use of disposable products increased 
approximately 1,000 percent among high-school students and 
approximately 400 percent among middle-school students.\11\ Based on 
data from the 2020 MTF survey, among 12th and 10th graders who had 
vaped nicotine in the past 30 days, 27.8 percent of respondents 
selected ``Other'' as the brand of ENDS used most often, with 30 
percent of respondents actually writing in ``Puff Bar'' or a spelling 
variant thereof.\12\ As researchers noted:
---------------------------------------------------------------------------
    \11\ See T. Wang, et al., E-cigarette Use Among Middle and High 
School Students--United States, 2020.
    \12\ See R. Meich, et al., Trends in Use and Perceptions of 
Nicotine Vaping Among U.S. Youth From 2017 to 2020.

        Some adolescents were able to continue using vaping flavors in 
        part because they switched away from cartridge-based vaping 
        devices such as JUUL, for which flavors were not readily 
        available, and moved to newer, disposable vaping devices that 
        come in a variety of vaping flavors and surged in sales after 
        JUUL's decision to discontinue selling flavors other than 
        tobacco and menthol. While JUUL prevalence among youth who 
        vaped in the past 30 days fell an absolute 18 points in 2020, 
        this decline was offset in part by an absolute increase of 8 
        points in Puff Bars, a disposable brand that comes in a variety 
        of flavors other than tobacco and menthol.\13\
---------------------------------------------------------------------------
    \13\ Id. at E5.

    Notably, many of these flavored disposables appear to be marketed 
illegally. Under FDA laws, regulations, and policy, only those ENDS 
products that were on the market as of August 8, 2016, and had a 
product application submitted to FDA by September 9, 2020, may be on 
the market.\14\ Based on market data, however, the vast majority of 
disposable products were introduced beginning in 2019 and thus subject 
to enforcement action immediately. In fact, the Agency has enforced 
against such products, including warning letters to disposable 
manufacturers for illegal marketing.\15\
---------------------------------------------------------------------------
    \14\ See, e.g., FDA, Perspective: FDA's Preparations for the 
September 9 Submission Deadline (Aug. 31, 2020), https://bit.ly/
3zQVCca.
    \15\ See FDA News Release, ``FDA Notifies Companies, Including Puff 
Bar, to Remove Flavored Disposable E-cigarettes and Youth-Appealing E-
Liquids from Market for Not Having Required Authorization'' (July 20, 
2020), available at https://bit.ly/3iawVBe; FDA, Warning Letter to XL 
Vape, LLC d/b/a Stig, Inc (Sept. 9, 2020), available at https://bit.ly/
3794Kws.
---------------------------------------------------------------------------
    Flavored disposables remain a concern and underage use of JUUL 
products remains unacceptable. But we are encouraged by the recent 
declines observed in 2020 and more can and should be done to accelerate 
reductions in underage use of all ENDS and other tobacco products going 
forward. We believe that comprehensive, evidence-based interventions 
built on limiting appeal through marketing and restricting access at 
retail are critical tools to address underage use and we continue to 
implement such measures and advocate for category-wide adoption.
Deference to a Science-and Evidence-Based Process While Maintaining 
        Transparency Among Stakeholders
    As part of our ongoing effort to reset relationships with 
stakeholders, including policymakers, we strive to be both constructive 
and transparent. We appreciate there are legitimate questions on the 
public-health role of JUUL and other ENDS products. Open dialogue is 
and should remain imperative. As our CEO stated at the February 2020 
Energy and Commerce subcommittee hearing: ``[M]y company is working 
hard to listen to our stakeholders in the hope of making progress 
together toward the twin goals of helping adults switch away from 
cigarettes, while combatting underage use.''
    Critically, through the pending review of our PMTAs, our regulator 
is evaluating those very considerations to determine whether JUUL 
products meet the statutory standard of being appropriate for the 
protection of public health.
    The PMTA process, as established by Congress, is one based on 
science and evidence and subject to FDA's independent and thorough 
review by career scientists, technical experts, and regulatory 
professionals across disciplines. This rigorous, science-based review 
enables the Agency to serve as the gatekeeper of new products and 
authorize their marketing if determined to be appropriate for the 
protection of public health. While manufacturers, like JLI, bear the 
obligation of providing necessary information, scientific data, and 
analysis to support the marketing of their products, ultimately FDA 
determines whether such products have a net positive effect on the 
health of the population as a whole--accounting for both current users 
of tobacco products and nonusers including those underage.
    On July 29, 2020, JLI submitted PMTAs for the JUUL System. Our 
applications include over 110 scientific studies across research 
disciplines to demonstrate the harm-reduction potential of the JUUL 
System for adult smokers. Research ranges from assessing the reduced-
risk of our products compared to combustible cigarettes through 
nonclinical and clinical studies to an expansive behavioral research 
program that evaluates the ability to transition and completely switch 
adult smokers from combustible cigarettes.
    Our science is presented alongside our evidence-based interventions 
for the marketing and sale of the JUUL System to address and reduce the 
potential for underage use. Under the PMTA process, FDA will review 
proposed marketing plans submitted by manufacturers on how and where 
they will market their products.\16\ For our PMTAs, we provided a 
detailed marketing plan, including representative marketing materials, 
that is based on advertising and promotion tailored to adult smokers 
through narrow marketing channels to limit the potential for unintended 
exposure among those underage. And as to our current practices, we have 
committed to stay off broadcast and digital channels and social media, 
as well as refrain from using influencers, bloggers, and brand 
ambassadors to market JUUL products.
---------------------------------------------------------------------------
    \16\ See Family Smoking Prevention and Tobacco Control Act, 
Sec. 910(b)(1)(A); FDA, Guidance for Industry: Premarket Tobacco 
Product Applications for Electronic Nicotine Delivery Systems (June 
2019); Proposed Rule, Premarket Tobacco Product Applications and 
Recordkeeping Requirements, 84 Fed. Reg. 50566, 50580-50582 (Sept. 25, 
2019).
    In January 2020, FDA released the final rule for PMTAs to the 
Office of the Federal Register but was withdrawn as a result of the new 
Administration's memorandum on ``Regulatory Freeze Pending Review.'' 
The final rule included similar requirements relating to the submission 
of marketing plans in PMTAs and is now pending review by the Office of 
Information and Regulatory Affairs.
    For reference on the breadth and types of marketing requirements 
and restrictions applied to authorized PMTAs, see FDA, Technical 
Project Lead Review for Primary STN(s) PM0000424, PM0000425, PM0000426, 
and PM0000479 at 103-110, available at https://bit.ly/2V1VUxV.
---------------------------------------------------------------------------
    Since their submission, our PMTAs have been processing through the 
various stages of FDA's deliberative review. Currently, the 
applications are under substantive review; meaning the most thorough 
review stage in which the Agency is evaluating the scientific 
information and data within the PMTAs to determine whether to authorize 
our products for continued marketing.
    We also note that FDA is reviewing thousands of applications 
covering millions of ENDS products submitted from other manufacturers 
by the September 9, 2020 deadline. This is a significant and 
unprecedented burden, but the Agency is making considerable progress in 
the review of these applications.\17\ Through this critical, science-
based review, FDA will apply the standard as entrusted by Congress to 
determine whether the marketing of JUUL and other products are 
appropriate for the protection of public health. Such evaluation and, 
for some, validation on the science and evidence will have a 
significant effect on altering the trajectory of cigarette-related 
death and disease in the United States and advancing tobacco harm 
reduction.
---------------------------------------------------------------------------
    \17\ See, e.g., FDA, Perspective: FDA's Progress on Review of 
Tobacco Product Applications Submitted by the Sept. 9, 2020 Deadline 
(Feb. 16, 2021), https://bit.ly/35gS8lC.
---------------------------------------------------------------------------
    Given the status of our PMTAs amid regulatory review, we defer to 
the science and seek to preserve the integrity of an administrative, 
evidence-based process--one free from external influence and 
interference. This is particularly relevant given legitimate concerns 
on various attempts to undermine FDA's ongoing evaluation and direct a 
specific decision on pending product applications.
                                  ***
    We remain steadfast in our belief that our company and product 
category needed a reset to earn the trust and license to operate from 
our stakeholders and society. ENDS and other noncombustible products, 
substantiated by science, can present a significant public-health 
opportunity by providing adult smokers a viable alternative to 
combustible cigarettes--a product that will kill half of all long-term 
users. But only if we equally combat underage use and market and sell 
these products responsibly.
    While we have made progress, we recognize there is much work to do 
and we must continue to listen, learn, and engage stakeholders to 
advance tobacco harm reduction in support of the Comprehensive Plan and 
reduce tobacco-related death and disease in the United States.
            Respectfully yours,
                                     Katherine E. Rumbaugh,
                                             Senior Vice President,
                             U.S. Federal and State Government Affairs.

cc: The Honorable Roger Wicker, Ranking Member

The Honorable Richard Blumenthal, Chair, Subcommittee on Consumer 
Protection, Product Safety, and Data Security

The Honorable Marsha Blackburn, Ranking Member, Subcommittee on 
Consumer Protection, Product Safety, and Data Security

    Senator Blackburn. And I just thank you all for being here 
and for being open to answering our questions that will come 
following the hearing. And, Mr. Chairman, good hearing. Thank 
you very much.
    Senator Blumenthal. Thank you. This hearing will remain 
open for two weeks, the record will remain open. I am going to 
submit for the record, if there is no objection, an American 
Prospect article entitled, ``Juul Taking Academic Corruption To 
A New Level,'' which I think says a lot about accountability.
    [The information referred to follows:)

                           Knowledge Tracker

            Juul: Taking Academic Corruption to a New Level

The e-cigarette company bought an entire issue of a scholarly journal, 
with all the articles written by authors on its payroll, to `prove' 
that its product has a public benefit.

                             BY DAVID DAYEN

                              JULY 7, 2021

    For years, I've followed the story of Juul, which came out of 
nowhere to control nearly the entire market for e-cigarettes. Altria, 
maker of Marlboros, purchased 35 percent of Juul in late 2018, valuing 
it at the same level as Target, Delta Airlines, and the Ford Motor 
Company at the time.
    Juul's dominance dissipated around the time that over a thousand 
people contracted a mysterious vaping-related sickness in the fall of 
2019, and state and federal regulators started to investigate the 
company's blatantly obvious marketing to teenagers. Within weeks, 
Walmart stopped stocking e-cigarettes, television ads for the product 
came down, cities and states banned sales, and Juul eliminated the 
flavored vape pods that were most clearly designed to attract young 
people. Juul's market share in e-cigarettes shriveled from around 75 
percent to 42 percent.
    Now the company is in a fight for survival. The Food and Drug 
Administration (FDA) will soon decide whether to allow Juul to continue 
selling its products in the U.S. At issue is whether the public-health 
benefit for converting cigarette smokers to vaping outweighs 
introducing an entirely new generation to nicotine addiction. The 
decision will be made by early September.
    Juul is spending millions in lobbying and persuasion to get the 
FDA's green light to continue operations. But a Tuesday New York Times 
article on the subject contained a fascinating nugget midway through, 
which could be described as a buried lede (journalese for putting the 
most explosive part of a story in the middle of the piece). Juul, the 
Times reports, ``paid $51,000 to have the entire May/June issue of the 
American Journal of Health Behavior devoted to publishing 11 studies 
funded by the company offering evidence that Juul products help smokers 
quit.''
    The corruption of academic research is not a new subject. 
Corporations fund third-party studies and benefit from ``independent'' 
validation of their perspectives all the time. But this is a new 
wrinkle. Juul didn't just front money for a couple of academic papers; 
it bought an entire edition of the American Journal of Health Behavior 
(AJHB), which it can then point to as ``proof'' that its product has a 
public-health benefit, the key question currently before the FDA.
    And the more you look at this story, the stranger it gets.
    The $51,000 fee included $6,500 to unlock the entire journal for 
public access--so you can read the entire special 219-page Juul issue 
here. It's fascinating. There are 26 named co-authors on the 11 
studies. According to the ``Conflict of Interest'' statements 
associated with them, 18 of the co-authors are either current full-time 
employees of Juul, or were full-time employees at the time they 
conducted the research. Five others are consultants with 
PinneyAssociates, working ``on an exclusive basis to Juul Labs.'' And 
the final three, who co-authored one of the 11 studies, are employees 
of the Centre for Substance Use Research, an ``independent'' 
consultancy that designed that study under a contract with . . . Juul 
Labs.
    Pretty much all the articles take the Juul party line that e-
cigarettes help convert smokers away from combustible tobacco products, 
and thus aid public health. Pretty much none of the articles mention 
that Juul and other vaping companies make their money by attracting 
countless new people to nicotine addiction. And it's barely worth even 
commenting on the quality of the research when it all comes from the 
same corporate source.
    Saul Shiffman, one of the PinneyAssociates consultants, took a co-
author credit on ten of the 11 studies. ``In that role, he acted as the 
internal editor and coordinator for the papers in this special issue,'' 
reads the Conflict of Interest statement on the introductory note. So 
not only were these studies all funded by Juul, not only was everyone 
who wrote them on the Juul payroll, either indirectly or (in most 
cases) directly, but the internal editor of the ``outside'' journal was 
under contract with Juul as well.
    Juul has not yet responded to a request for comment. In response to 
a query, PinneyAssociates referred the Prospect to a previous response 
from Shiffman and Erik Augustson, one of the former Juul employees. 
``Our intention with these publications was to provide the nicotine and 
tobacco research community--as well as the broader public health 
community--with the opportunity to evaluate the research for 
themselves,'' they wrote. ``All of the papers were subjected to the 
journal's standard peer-review and editorial process and we believe the 
underlying science is strong.'' They added that Dr. Elbert Glover, 
editor in chief of the journal, oversaw all content.
    But the American Journal of Health Behavior also bears some 
scrutiny, beyond their selling a special issue to a corporation. The 
journal has been around for 45 years, and prides itself on scrupulous 
ethical guidelines, including the mandatory listing of conflict-of-
interest disclosures within all articles. But the AJHB follows a trend 
among a handful of academic and scientific journals: Its authors must 
pay to publish.
    There's a whole fee schedule at the journal's website. Authors pay 
$895 per article, and if they want the article to be made Open Access 
so that everyone can read it, that jumps to $1,595. (Only a portion of 
articles are accepted for Open Access, as most of the AJHB is gated.) 
If you want more than six tables and figures in your article, that'll 
cost you $150 a pop. And a ``theme issue,'' similar to the kind that 
Juul bought, costs $2,500 per article, with an additional $500 to make 
each article ungated, not including the $195-per-article service fee 
for copyediting.
    In this context, the $51,000 that Juul paid for the May/June issue 
is not that far from what the AJHB would normally charge for a theme 
issue with 11 studies ($33,000, plus extra for copy check and any 
additional tables and figures above the prescribed limit). This turns 
the work of a scientific journal into what looks like advertising.
    I asked Rebecca Tushnet of Harvard Law School, who specializes in 
advertising law, about the propriety of this arrangement. ``If Juul's 
sponsorship is adequately disclosed, that would address most 
advertising law questions,'' she said. Tushnet added that marketing can 
be charged as misleading if the target is general consumers, but here 
the publication, a scholarly journal, is designed for experts. ``One 
might wonder whether experts are in fact all that resistant to 
bullshit--it's common wisdom among scammers that doctors are among the 
easiest to fool because of their self-confidence and expectations of 
deference,'' she noted, ``but courts are understandably reluctant to 
weigh in on publishing battles of the experts.''
FDA officials might not be aware of the degree of the pay-to-play 
        relationship in this Juul special issue.
    There are multiple rip-offs going on here at once. Academics are 
desperate to publish in journals to prove to their universities that 
they are working diligently. Corporations recognize the opportunity to 
underwrite research and produce independent validation of their goals. 
And they turn around and use that research to persuade policymakers, 
who presume themselves sophisticated about spotting fake research, but 
probably are not.
    At its FAQ page, the AJHB acknowledges that pay-to-publish 
scholarly journals have become a real scourge in the scientific 
community: ``[T]he recent proliferation of journals whose obvious focus 
is the for-profit generation of revenue without regard to science 
constitutes a development that creates a major problem for reputable 
journals that must charge to deliver its service to the academic and 
practice communities.'' Indeed, the Federal Trade Commission put out a 
formal warning about ``predatory'' journal publishers in 2016. But the 
AJHB justifies the charges by saying that, as a small organization 
without a large membership base, it has ``no other choice without 
incurring financial jeopardy.'' The American Journal of Health Behavior 
did not respond to a request for comment.
    To my eye, there looks to be little difference between the 
corruption of for-profit scientific journals that degrade the quality 
of available research, and the corruption in this particular scenario, 
where an entire issue of a decades-old scholarly journal goes directly 
into the hands of a private company that will use it to persuade a 
Federal regulator about the efficacy of its product. FDA officials 
might not be aware of the degree of the pay-to-play relationship in 
this Juul special issue, and how that might compromise the science.
    Clearly, some people associated with the American Journal of Health 
Behavior were uncomfortable with the arrangement; according to the 
Times, three editorial board members resigned in the wake of the 
special issue.
    I don't know if this academic journal gambit will save Juul's 
business or not. I do know that Juul did its part to innovate in the 
area of corrupting the very notion of scientific inquiry. So thanks for 
that.

    Any questions--any Senators who would like to submit 
questions for the record should do so by August 17. We ask that 
your responses, if you have any, be returned to the Committee 
as quickly as possible.
    And that concludes today's hearing. Thank you very, very 
much to the witnesses, and this hearing is adjourned. Thank 
you.
    [Whereupon, at 4:12 p.m., the hearing was adjourned.]

                            A P P E N D I X

    Response to Written Question Submitted by Hon. Amy Klobuchar to 
                            Joshua H. Stein
    State Enforcement. Last year, North Carolina sued e-cigarette maker 
Juul Labs for allegedly marketing e-cigarettes to attract young people 
and misrepresenting the potency and danger of nicotine in its products. 
In June, North Carolina announced a $40 million settlement, under which 
Juul will no longer target advertisements to minors.

    Question. Can you speak to some of the most effective state 
enforcement measures that should be considered on the Federal level?
    Answer. The success of our lawsuit stems from our use of North 
Carolina-specific statutes that protect consumers against unfair or 
deceptive trade practices. And, since we sued Juul, dozens of states 
have sued or opened investigations into Juul's marketing practices 
under their own consumer-protection statutes and reached agreement on 
resolving those cases. The thread that connects all of our lawsuits and 
investigations is an underlying statute that allows the state to sue in 
a parens patriae capacity to protect the state's consumers against 
unfair marketing schemes. The FTC, of course, has similar authority 
under similar laws. But, the laws across all of our jurisdictions are 
different--each has different elements and different evidentiary 
standards. And there are different limits on the monetary penalties 
that can be assessed under each jurisdiction's statutes for violations. 
So, from an enforcement perspective, it would be helpful for Congress 
to focus on ensuring that Federal (and state) agencies have broad power 
to crack down on the great many varieties of unfair marketing schemes 
in existence today (and which may exist in the future)--and be able to 
assess penalties that would be significant enough to deter unlawful 
conduct.
    But enforcement cannot be the only solution. As our lawsuit 
demonstrated, enforcement mechanisms only penalize conduct after the 
fact. We brought this lawsuit to hold Juul responsible for harming 
millions of underage consumers in North Carolina. But, to bring this 
epidemic to heel, we need to regulate conduct before the harm occurs. 
This is why we need the FDA and other regulatory agencies of the 
Federal government to take a stronger hand and establish the ground 
rules for marketing these types of products in the first place. That 
action will then allow the enforcement authorities (including my 
office) to focus on bad actors who continue to violate consumer 
protections, instead of forcing us to play whack-a-mole with every new 
entrant into this space.
                                 ______
                                 
    Response to Written Question Submitted by Hon. Amy Klobuchar to 
                           Ariel Fox Johnson
    Deceptive Marketing to Children and Teens. Protecting consumers, 
especially children, from deceptive marketing and sales tactics is 
critical. In January, the World Health Organization (WHO) reported that 
from 2011 to 2020, e-cigarette use among U.S. high school students 
increased from 1.5 percent to almost 20 percent. In your testimony, you 
note that children up to age 12 have trouble understanding the intent 
of an advertisement.

    Question. What trends are you seeing in how tobacco is being 
marketed to children and young users, and what measures should we take 
to help address this problem?
    Answer. Tobacco products are being marketed in similar ways as 
other products online, meaning that companies are using newer 
techniques which make ads even harder to distinguish from content, and 
placing such ads on social media where many youth will see them and 
start promoting them themselves. For example, JUUL used 20-something 
social media influencers to popularize and promote its products on 
social media through posts and popular hashtags (Jackler et al., 2019). 
Teens viewing such posts may not immediately--if ever--understand these 
were advertisements, but they would certainly want to imitate the cool, 
good looking influencers. While JUUL has appeared to limit such active 
promotions of its products more recently, the hashtags live on, and 
promotion of tobacco products is now occurring via viral advertising 
being carried on by youth themselves.
    Congress and the Federal Trade Commission can take steps to address 
these problems. Congress should pass legislation like the KIDS Act, 
which would limit problematic commercial practices for youth online 
(KIDS Act, S.3411, 116th Cong., 2020). The FTC can also update its 
Endorsement Guidelines and make clear which practices are prohibited 
for youth. In general, companies which sell products that are illegal 
or unhealthy for youth should be limited in their abilities to push ads 
to young people, including ads via influencers. Endorsement and 
influencer ads are inappropriate for young children, and should not be 
used for unhealthy food, drink, tobacco products, or alcohol for 
teenagers either. Any endorsement ads shown to teens should also be 
more clearly labeled.
                                 ______
                                 
 Response to Written Question Submitted by Hon. Richard Blumenthal to 
                           Ariel Fox Johnson
    Question. Chairman Blumenthal asked during the hearing what Common 
Sense would recommend the FDA do with its pending premarket review of 
e-cigarettes and other new products?
    Answer. We urge the Food and Drug Administration to ban flavored 
products, prohibit high-nicotine products, and stop marketing to kids 
of any nicotine products. Common Sense has watched with concern as teen 
vaping rates have grown--with almost 8/10 teens now reporting vaping is 
popular (Common Sense Media , 2019)--following viral youth marketing 
and the use of flavors like fruit and mint to appeal to youth. Indeed, 
flavors are the most-cited reason youth try e-vaping products (Ambrose, 
2019; King, 2020; U.S.HHS, 2016). The fact that these new products can 
contain significantly higher levels of nicotine than traditional 
cigarettes is even more alarming. Current e-cigarette products contain 
amounts of nicotine that are multiple times over what is permitted in 
the EU and UK (Attorney General Letter to FDA Commissioner, 2021, 5). 
We urge the FDA and all policymakers to act to counter e-cigarette 
makers' efforts to addict a new generation.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Cynthia Lummis to 
                           Ariel Fox Johnson
    Question 1. How, if at all, has the ``actual knowledge'' standard 
outlined in the Children's Online Privacy Protection Act enabled 
companies to evade sanction for collecting children's online data in 
contravention of the spirit of the law?
    If it has, do you believe that the ``actual knowledge'' standard 
should be revised and replaced with a new standard?
    Answer. The Federal Trade Commission has interpreted ``actual 
knowledge'' under COPPA fairly strictly (Children's Online Privacy 
Protection Rule, 16 C.F.R. Sec. 312 2013). This encourages companies to 
simply avoid gaining strict ``actual knowledge''--by, for example, not 
asking a child's birthdate or by not publicly telling advertisers or 
others how old they think their audience is--even if they have full 
expectation children are using the sites. As a majority of State 
Attorneys Generals have explained, this strict actual knowledge 
definition ``incentivizes companies to willfully ignore (or 
strategically refuse to cognize) information they receive about child 
audiences on their platforms,'' (Attorney General F.T.C. Letter COPPA 
Rule Review, 2019, 5).
    This is why newer laws, like the California Consumer Privacy Act, 
make clear that ``actual knowledge'' covers those companies who are 
willfully disregarding children (CCPA, Sec. 1798.120(c), 2018). This is 
preferable to the current narrow Federal standard, but an even better 
standard would be to require that companies offer privacy protections 
if they have ``actual or constructive knowledge'' about child users--
essentially, if they know or have reason to know about children on 
their sites and services. This is consistent with other civil knowledge 
standards, and what is proposed in more recent COPPA update proposals 
such as the one from Senators Markey and Cassidy (Children and Teens' 
Online Privacy Protection Act, 2021).

    Question 2. What specific design features, if any, can be included 
or excluded in an online experience to make a user's consent, 
especially when given by a minor or child, meaningful and informed?
    If certain features are particularly important, please provide 
examples, links, or citations to relevant materials.
    Answer. Design features are important to ensuring that consent is 
meaningful and informed. For young children, it may be the parents who 
are giving consent. Young children should still be informed of what is 
going on in an age-appropriate manner, however. And teens typically 
give their own online consent.
    In all situations, language and images should be appropriate for 
the age of the audience. For example, with younger children and 
teenagers, videos, graphics, and even cartoons for younger children can 
be used to better explain what a service will do with information and 
why it is seeking consent. Legalese should be avoided, and companies 
should seek to present language that is a bit younger than the grade 
level of the expected audience in order to capture a range of 
abilities.
    In terms of the location of information that is providing notice or 
seeking consent, it is particularly helpful to offer ``just in time'' 
notices to young people and to adults, so that they are presented with 
information at the time it is most relevant to them. Privacy 
information should be prominent. And children may also be more likely 
to read privacy related information when it does not feel separate from 
the general service (e.g., hidden away at a link at the bottom of the 
page).
    The UK's Age Appropriate Design Code offers useful examples of age-
appropriate transparency in its Code Standard 4, available at https://
ico.org.uk/for-organisa
tions/guide-to-data-protection/ico-codes-of-practice/age-appropriate-
design-a-code-of-practice-for-online-services/4-transparency/. And the 
UK Information Commissioner's Office recently published a useful 
report, ``Designing data for children,'' available here https://
ico.org.uk/media/2620177/designing-data-transparency-for-children.pdf.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Marsha Blackburn to 
                           Ariel Fox Johnson
    Question 1. Ranking Member Blackburn asked during the hearing about 
ads that give children additional tokens or more gameplay and who has 
engaged in this practice.
    Answer. Asking children to watch ads in exchange for additional or 
easier gameplay or other in-game rewards is common even in young 
children's apps. In one study of popular apps marketed to or played by 
children under 5, researchers observed ``incentive ads'' (which would 
unlock levels or items) in almost 25 percent of free apps and in 15 
percent of other apps. One example of this is in the Masha and the Bear 
Vet Clinic app, where players attempting to obtain medicine and 
supplies to treat sick animals can get faster and more effective items 
if they watch a video advertisement denoted by a video icon in the game 
(Meyer et al., Advertising in Young Children's Apps: A Content 
Analysis, 2019).

    Question 2. Ranking Member Blackburn asked if there is a good piece 
of legislation to move research on the effects of ads and marketing to 
kids.
    Answer. The Covid-19 pandemic and subsequent stay-at-home orders 
have left kids and families relying on screens even more than they 
already did. Meanwhile, the relationship between screen time, social 
media, and mental health among kids and teens continues to be extremely 
nuanced. It is more critical than ever that families, technologists, 
and lawmakers have independent, longitudinal research necessary to take 
an evidence based approach to ensuring the safety and impact of tech--
including online marketing--on young people. The bipartisan and 
bicameral CAMRA, or the Children and Media Research Advancement Act, 
would amend the Public Health Service Act to authorize a five-year 
program within the National Institutes of Health (NIH) to facilitate a 
greater understanding of the health and developmental impacts of 
digital media use--including advertisements--on infants, children, and 
adolescents. CAMRA allocates $15 million per year for the first three 
years and $25 million per year for the remaining two years and would 
require NIH to:

   Conduct and support research on the developmental effects of 
        digital media, including but not limited to, social media, 
        websites, television, motion pictures, mobile devices, 
        computers, and video games--on children of all ages;

   Develop a research agenda on the health and developmental 
        effects of digital media on infants, children, and adolescents 
        to inform research made possible under the proposal;

   Establish a research program on the health and developmental 
        effects of media on infants, children, and adolescents; and

   Submit a preliminary progress report to Congress within one 
        year.

    CAMRA would be an excellent vehicle in which to better study and 
understand the effects of digital advertising and marketing to 
children.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Ben Ray Lujan to 
                          Maureen K. Ohlhausen
    1. In his testimony, Mr. Stein highlights a very important point 
that separates this problem we're facing today with vaporized nicotine 
compared to the fight against traditional cigarettes in the 1990s. 
Rather than having four companies that can be held individually 
accountable, there are dozens of companies pushing these products.

    Question. How can the FTC ensure Federal consumer protection laws 
are enforced against all manufacturers of e-cigarette products, rather 
than just the biggest companies?
    Answer. FTC's law enforcement activities involving tobacco 
advertising and promotion date back to the 1930s and involve oversight 
of large and small companies. The Commission's periodic reports on 
advertising and promotion activities in the cigarette and smokeless 
tobacco industries provide information on sales and on expenditures for 
various categories of marketing expenditures, and, in 2019, the FTC 
announced that it would begin collecting such information for e-
cigarettes. As the FTC gathers information about claims made regarding 
e-cigarettes, it should be alert to unfair or deceptive claims made by 
e-cigarette manufacturers, regardless of size, and take action 
accordingly. During my tenure as acting-Chairman, for example, in 2018 
we took action against a number of small companies to address the 
marketing of liquid nicotine products in a way that appealed to 
children.

    2. This hearing was very helpful in understanding the full 
regulatory context for protecting children from these types of products 
intended for adults. Such a regulatory framework includes limits on 
advertising, as well as science-based regulations to address concerns 
around manufacture, sale, and use.

    Question. As we consider regulatory frameworks for other products 
intended for adults, including cannabis, do you believe a comprehensive 
regulatory approach is the correct one to limit youth access and 
support product safety?
    The FTC routinely cooperates with other Federal agencies, as well 
as state and local enforcement officials, to protect consumers. This is 
particularly beneficial in cases that involve health or safety claims, 
where the FTC will rely on the expertise of such agencies as the CPSC, 
the EPA, and the FDA to help it analyze the validity of the underlying 
claim and to assess any risks to users. This approach is especially 
important for products that are not appropriate for youth due to health 
and safety concerns.

                                  [all]