Juuling. Recently, many clients have called us about a new vaping phenomenon called “Juuling.” E-cigs and vape pens have been around for a while, but there has been a recent upswing in student use of vapor products since the introduction of a new device called a “Juul.”   Juul is the name-brand for a vaping device that heats up a cartridge containing oil to create a vapor.  It has a tech-inspired design that resembles a USB flash drive and is small enough to be concealed in a closed fist, backpack, pocket, sock, or undergarment.  It charges in a USB port, so it is easy to convince unsuspecting teachers that it is in fact a USB device. You may have students in your school charging their vaping device in the middle of class!

In addition to looking innocuous, the vapor a Juul emits, like other e-cigs, is hard to detect since it does not smell like cigarette smoke. Students can smoke from it and blow the vapors into a backpack or sweater and the teacher is none the wiser.   One pack of oil for a Juul contains the nicotine equivalent to 1-pack of cigarettes or 200 cigarette puffs. One hit off a Juul can produce quite a buzz, which is also a huge appeal for students and creates a new generation of nicotine-addicted youth.

Law enforcement representatives, and particular drug recognition experts, have also informed us that Juuls have been used to ingest cannabis products (Liquid THC, Hash Oil, and Synthetic Marijuana (K2), opium (Fentanyl), bath salts, flakka     (combination of Heroin and Methamphetamine or Crack) and hallucinogens and psychedelics (DMT).

According to a recent TIME article, Juul now controls 72 percent of the e-cigarette market in the US.  This epidemic is so serious that, although the industry is not heavily regulated, the FDA has stepped in to determine whether Juul deliberately targets minors as consumers.  Does that sound familiar to those of you who saw cigarette ads in the Joe Camel and Marlboro Cowboy era? The FDA has increasingly expressed alarm over the prevalence of vaping among youths in high school and even middle school, which its commissioner, Dr. Scott Gottlieb, said had reached “epidemic proportions.”

Nebraska Law.  Nebraska criminal law changed in response to vaping a few years back.  Under Neb. Rev. Stat. § 28-1418, it is unlawful for a minor under 18 to use tobacco or “alternative nicotine products” in any form whatsoever.  In addition to nicotine, there are hundreds of videos on the internet that instruct students how to change the oil in e-cigarettes and Juuls to add THC and other marijuana derivatives, which would obviously be illegal under Nebraska law, as well.

Despite those prohibitions in the criminal code, there are two sticking points for schools.  First, there is no way to know for sure what substance is contained in the device without testing the oil. Second, the Student Discipline Act (SDA) does not list “tobacco” or even “nicotine” use in the grounds for long-term suspension and expulsion.  With that said, the SDA allows schools to impose those consequences for violations of Nebraska criminal law. However, there is no way for schools to test the liquid efficiently or effectively to know if the substance is unlawful. Law enforcement officers generally do not have a field test for nicotine.

Some city ordinances go further than the state law in prohibiting students from possessing vapor devices.  For example, Grand Island City Ordinance § 20-20 flatly prohibits anyone under the age of 18 from possessing any vapor product.  However, the SDA only allows schools to punish violations of Nebraska criminal law.

In short, unless you can verify that someone 17 or younger has nicotine in his or her vape at school, or any student has marijuana derivatives or other unlawful substances in their vape, you may not have grounds to impose disciplinary consequences.  Possession of a completely empty Juul or a device with fruity water, for example, is perfectly lawful in most circumstances if it doesn’t contain an unlawful substance.

Solution to the problem.  Because of these wrinkles in the law, the best way to combat the new Juuling craze is through school policy and education.  The SDA allows boards of education to impose other “school rules” not specifically contained in the SDA. We think every board’s student discipline policy should contain a “school rule” prohibiting any vape product or cartridge from campus, no matter what’s in it.  That way, if a student has any vape pen or other alternative product, you can impose extracurricular consequences and short-term suspensions for one violation of those “school rules.”  Any “repeated violation of school rules” can then be used to impose a more serious consequence, like expulsion. Of course, this would not limit your ability to expel a student if he or she did have unlawful substances in their vape the first time they got caught.

You could also consider prohibiting students from possessing  certain types of items that look like common vaping products and Juuls, in particular flash drives. Flash drives are cheap, and you can probably get hundreds of them for very little cost with the school’s logo on them. If you prohibited  the possession of a non-school-issued flash drive, you could impose disciplinary consequences on a student who brought their own and/or confiscate it to see if it is a Juul.

Ultimately, we believe the best approach is to educate students and parents to avoid having to impose discipline.  Some schools recently have sent letters home to families alerting them to Juuling and telling them not to bring any vape to school because it violates school policy.  Other schools have collaborated with their SROs and other law enforcement agencies to communicate with parents. These are great ideas. If your school does not know the laws and health concerns regarding vaping and Juuling, it is unlikely students and parents know.  You should educate families on these issues, as well as your staff. If you need help with changing your school’s policies and educating your students and staff, please contact your school’s legal counsel or any member of the KSB School Law team.