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- electronic nicotine delivery devices
- disparities
- social marketing
- priority/special populations
- tobacco industry
Introduction
In the USA, Indigenous nations have operated independently since precolonisation.1 Today, 574 federally recognised American Indian/Alaska Native (AI/AN) tribes continue to exercise their inherent sovereignty by governing themselves and their lands, which makes many federal and state laws unenforceable within the reservation boundaries.1–5 However, tribal nations also have a unique ability to use their sovereignty to independently protect their own native communities.1 The goal of this Industry Watch publication is to present a case study of the Cheyenne River Sioux Tribe and how it used its sovereign power to redirect electronic cigarette (e-cigarette) maker JUUL from achieving a proposed ‘partnership’.
There is disproportionate use of e-cigarettes by the AI/AN Native (herein referred to as ‘Native’) youth, as shown in the National Youth Tobacco Survey covering 2014–2017. The survey demonstrated that current use of e-cigarettes was particularly high among Native youth (ie, AI/AN: 12.7%; Native Hawaiians/Other Pacific Islander: 18%) compared with other demographics (ie, Asian: 3.6%; black: 5.1%; Hispanic: 9.9%; white: 10.2%).2 However, due to aggregation of racial/ethnic categories in later national surveys beyond 2017, the actual prevalence of e-cigarette use among Native youth is currently unknown.3
Case study
According to the official Tribal Council meeting minutes dated 23 January 2019 and the Tribal Health Committee meeting minutes dated 1 February 2019, three representatives from JUUL Labs travelled to Eagle Butte, the centre of the Cheyenne River Sioux Reservation on tribal land in rural South Dakota, to offer a ‘switching program’.6 During the January Tribal Council meeting, free starter kits were distributed to elected tribal officials (learnt from personal communication with multiple tribal officials in 2019), and during the February Tribal Health Committee meeting unauthorised smoking cessation and modified risk claims were made,6 all of which violate chapter 9 of the US Food, Drug, and Cosmetic Act.7 The programme was presented to the Tribal Health Committee as a public health intervention with the goal of ‘partnering with Tribes to improve lives’.6 JUUL offered to ‘sell’ their product to the tribe at a 90% discounted rate, suggesting that in turn tribal healthcare professionals could distribute JUUL starter kits for free to participating smokers/vapers 21 years or older.6
The JUUL representatives explained to Tribal Health Committee members that participants in the ‘switching program’ could log into the company’s AI/AN online portal (designed for multiple sovereign tribal nations to use) and enter personal information about themselves and their tobacco/nicotine behaviours (author’s personal observation).6 One JUUL representative stated: “We are ultimately a tech company, not an e-cigarette company. We’re looking at a lot of different tech solutions to help address health issues, so health issues can be solved and harm can be reduced.”6
According to the lead author’s personal observation, tribal officials present at the Tribal Health Committee meeting expressed concern about the following issues: (1) protection of personal identifiable information; (2) increased rates of JUUL use among youth and non-smoking adults as a result of a product that was to be positioned as ‘more healthful and cheaper’; (3) the addictive nature of nicotine; and (4) whether the programme is in conflict with Public Law 93-638, the Indian Self-Determination and Education Assistance Act, which authorises federal agencies to enter into contracts with and make grants directly to tribes,8 or tribal laws related to commercial tobacco use.6
Based on official meeting minutes,6 the goal of JUUL was to help cigarette smokers ‘switch’ from combustible tobacco products to JUUL’s e-cigarette product, because vaping carried ‘a fraction of the risk of smoking, and [is] at least 95% less harmful’. Tribal officials took no action at the meeting and instead requested a written proposal from JUUL explaining details of the ‘switching program’ before their next council meeting. A written proposal was never provided by JUUL, according to a personal communication with tribal officials. Instead, JUUL sent a mutual non-disclosure agreement (NDA) to the tribe’s attorney general that claimed the NDA had already been discussed by the Cheyenne River Sioux Tribal Health Committee, which was not true.6 Not surprisingly, the NDA was not signed by tribal officials.
Members of the Canli Coalition, a tribal grassroots tobacco prevention and control group which has been actively working on the Cheyenne River Sioux Reservation since 2009, acted on support from the tribe to share this story nationally to prevent other tribes from being unwittingly drawn in by JUUL’s deceptively presented outreach programme.9–11 Raja Krishnamoorthi (Democrat-Illinois), Chairman of the House Committee on Oversight and Reform Economic and Consumer Policy Subcommittee, invited the first author to testify. The subcommittee wanted to learn about JUUL’s tribal marketing practices in their July 2019 US congressional hearing. This investigation was also examining the nationwide youth e-cigarette epidemic.6 12 The primary outcome of this hearing was a warning letter from the US Food and Drug Administration (FDA) issued in September 2019 requesting materials about the ‘switching program’ and ordering JUUL to cease tribal engagement and outreach.13 Following this, JUUL declared that the ‘switching program’ had been abandoned before the hearing and that ‘no Tribes accepted the program’.14 In February 2020, JUUL admitted to targeting at least eight sovereign tribal nations with variations of the ‘switching program’ and that it contacted an undisclosed additional number of other tribes that declined a formal meeting.15 Since their initial visit, tribal officials confirm that JUUL representatives have never returned to the Cheyenne River Sioux Reservation.
Discussion
Targeting Native populations through e-cigarette marketing poses a significant threat to tribal health and exploits the lack of federal oversight that comes with inherent tribal sovereignty.6 It is conceivable that JUUL envisioned a gap in federal and tribal regulations on tribal lands as an opportunity to expand their market and/or exploit an at-risk population. Even if JUUL products are eventually shown to be less harmful than combustible cigarettes, the claims made to the Cheyenne River Sioux Tribal officials lacked regulatory sanction. Furthermore, claims by JUUL ignored the potential for increased nicotine addiction among young people16 and also overlooked exposure of secondhand vape aerosols17 in the tribal community.
Tribal officials, researchers and public health professionals recognise the health threat that high rates of commercial tobacco use pose to the Cheyenne River Sioux Tribe.18 Conceivably, e-cigarettes could be less harmful than smoking and might be useful in assisting Native people to quit combusted tobacco use, but if there is scientific consensus on their use for cessation or harm reduction, such efforts should be initiated by tribal leaders, not companies with a stake in expanding sales. Further, such initiatives should be undertaken within the larger context of tribal health governance, including measures to reduce commercial tobacco use by the tribal nation as a whole, restrict youth uptake of new products, and control secondhand smoke and vape exposures, as the Cheyenne River Sioux Tribe initiated in 2015 by Tribal Ordinance 77.18 In any case, all pressing public health actions must be carried out with respectful, equitable and transparent partnership with sovereign tribal nations.
Exercising tribal sovereignty is a critical tool to protect tribal public health and address commercial tobacco use and other disparities. Recently, six federally recognised tribes enacted bold policies, such as prohibiting the sale of e-cigarettes and/or the sale of flavoured e-cigarettes.19 This action demonstrates tribal unity, sovereignty, resistance and resiliency. However, in reality, public health policy enforcement in rural and resource-low settings is challenging and over 500 tribes have not yet adopted similar protections.
Tribal officials, federal officials, public health professionals and scientific researchers must all play an active role in identifying and eliminating e-cigarette companies’ unethical targeting of at-risk populations. Thus, we recommend tribal resistance in the form of (1) enacting policies to prevent targeting20; (2) implementing point-of-sale policies; (3) instituting tribal rules to protect sovereign policymaking from tobacco or e-cigarette industry influence; (4) reporting illegal or unethical marketing practices targeting Native people; (5) advocating for funding towards e-cigarette research and education; and (6) considering litigation against industry malfeasance.21 22
Ethics statements
Patient consent for publication
Ethics approval
This study does not involve human participants.
Footnotes
Contributors RO'L, JTZ, GYM, NH and EE all conceptualised, drafted and edited the manuscript.
Funding This work was partly funded by the NIH/NIEHS through a P30 Center supplement to NYU, MIT and UNM HSC (P30 NYU CIEH Center; 5P30ES000260-51) to increase and support environmental public health awareness and education to the participating tribal nations. Partial funding support also came from the Robert Wood Johnson Foundation.
Competing interests None declared.
Provenance and peer review Not commissioned; externally peer reviewed.