Oregon E-Cigarette Sales and the Law - Looks Good...
by, 01-30-2012 at 08:41 PM (2696 Views)
Oregon has not banned the sale of electronic cigarettes, a.k.a smokeless cigarettes! I’m making efforts to clarify that officially.
Based on news stories that appeared on our local television news, and subsequent reprints of an AP article and other news sources all over the web, people are mis-reporting the information.
[B]What does it say?[/B]
The way I read the article, [I]only two stores were affected in the entire state, and only one brand of the product[/I].[INDENT]The Oregon Department of Justice last week filed two settlements that prevent two national travel store chains, Pilot and TravelCenters of America, from selling “electronic cigarettes” in Oregon.[/INDENT]
To my mind, this means that others are free to use, possess, and so, the product however they see fit so long as they are not selling them from one of those two stores.
[B]Who is affected?[/B]
The product in question was made by Njoy, so does this mean that these two stores may sell other brands? Nobody seems to know!
First I went to the Department of Justice [URL="http://doj.state.or.us/"]website[/URL] for the Oregon Atty. Generals office.
On that page, they have a news item that is nothing but an RSS feed coming from the Associated Press.
Far less than informative, it seemed to describe the situation exactly as I have done just now. Only one brand and two store chains are all that’s affected.
[B]Where Else Did I Research?[/B]
Unable to find any other information, I then telephoned the Atty. Generals office at (503) 378-4400, and proceeded to thoroughly confuse the first person I got on the phone.
After being unable to help me, she then referred me to the criminal Justice division, claiming that “if something is illegal, they should know about it”. Gee, ya think so?
After wading through the voicemail there at 503-378-6347, I was given another phone number to call, this one for the Oregon Consumer Protection division, at 503-378.4320.
After sitting through their own mind numbing voicemail (which for some reason included step-by-step instructions how to report animal problems) I was finally able to talk to a consumer protection representative.
After explaining my story to him, and that I was merely trying to ensure that I did not break the law by owning, possessing, using, or selling electric cigarette in the state of Oregon, he was able to get a supervisor on the phone with me.
[B]So What Did I Do?[/B]
At that point I explained (for the fourth time) eactly what it was that I was trying to accomplish – I’m trying to find the official published position on this issue as put forth by the Oregon Attorney General.
Unfortunately she was also unable to answer my question, but did take my phone number and promised to have someone call me back.
When I ask if I would receive a call this week, she said she was uncertain what that someone would be in touch with me.
So, there you have it – straight from the horse's mouth. Oregon’s position on this issue is not in print or on the web anywhere, but when it is, I promise you can read it here.
In the meantime, I’m not stopping the use of my Ecig, and as I’ve said before, they’ll have to pry it from my cold dead lips.
*** Update 2pm Aug***
[B]Then What Happened?[/B]
I received a phone call back from David Hart at the DOJ, and he was cordial, but very “lawyerly”. He explained that he could not give me legal advice, but he did clarify their position a bit -
I can’t give you a “link to the law” because in his own words, “[I]there is no law in Oregon specifically mentioning electronic cigarettes[/I]“. In other words, electronic cigarettes are NOT illegal.
He said that based on the Oregon Revised Statutes, the Oregon DOJ filed a lawsuit based on a recent settlement in Marion County Oregon, which was based on a violation of Oregons Unlawful Trade Practices Act.
The DOJ is claiming misrepresentation regarding the product, because some manufacturers have said it’s “safe”, “safer than smoking” etc. That is the only criteria for this “banning” that the news has been hyping.
According to him, “whether it’s safe or not” is not the issue. What IS the issue is the fact that they believe consumers are being misled.
The potential fine for these companies is $25,000 per incident, and again, this is based on Oregon UTPA – ors 646.605 et seq.
He wouldn’t tell me any more, but he did say that only the two companies and to store chains were affected.
After hanging up with him, I found [URL="http://www.doj.state.or.us/releases/2009/rel073009.shtml"]this on the DOJ website[/URL] so I sent him and the author this letter by e-mail -
[I]Dear Mr. Hart,
[/I][I]Thank you for your time on the phone. As you offered, please send me a copy of the settlement saving me a trip to the courthouse.[/I]
[I]I was [URL="http://www.doj.state.or.us/releases/2009/rel073009.shtml"]able to read this statement[/URL], and it remains unclear.[/I]
[I]In the beginning, it sounds like only two store chains and two brands are affected.[/I]
[I]But in the last paragraph of Ben Unger’s text, he says this -[/I]
“The settlement announced today prohibits the sale of electronic cigarettes in Oregon until they are approved by FDA…”
“Even if courts decide that the FDA does not have regulation authority, the settlement stipulates that electronic cigarettes may not be sold in Oregon unless there is competent and reliable scientific evidence to support the product’s safety claims”
[I]and that makes it sound like a sweeping all encompassing mandate covering the product itself.[/I]
[I]but then the paragraph closes with this:[/I]“In addition, the companies must give the Attorney General advance notice that they intend to sell..”[I]
so that makes it sound again, like it only applies to those two companies.[/I]
[I]Any chance that you (or Mr. Unger) could please clarify that?[/I]
[I]Thank you again for your time on the phone.
[B]Within minutes, I got his response:[/B][INDENT]Per your request, attached is the AVC with TA Travel Centers.
As to the rest, I will leave it to Mr. Unger should he chose to comment.
Senior Assistant Attorney General[/INDENT]
and I will have to update again here when (and if) I get Mr. Ungers’ response…
***update August 8 2009***
So after getting no response from Mr. Unger, I sent this:
[I]Mr. Unger, can you please clarify / verify that this does only affect the companies and products specified?
Is it still “legal” to sell other brands from other businesses, or for OPregon consumers to order other brands online?[/I]
Then the next morning I got this back from Mr. Hart:
[I]You are again asking for a legal opinion and I already told you quite clearly the other day that DOJ is prohibited by law from giving you legal advice. To determine whether your promotion and sale of electronic cigarette devices violates Oregon’s Unlawful Trade Practices Act is a case by case analysis. Ultimately, you are responsible for the products that you sell and the claims you make when selling those products. I suggest that you consult with an attorney familiar with both the law and the express and implied promotional claims associated with your products.[/I]
[I]I paste below the response we are now giving to inquiries like yours. I hope this is helpful There is nothing more we can tell you.[/I]
Senior Assistant Attorney General
Financial Fraud/Consumer Protection
[B]” DOJ has not banned electronic cigarettes. We are taking action against e-cig vendors who misrepresent the safety of these products. [/B]
[B]The UTPA prohibits deceptive promotion of any product, including electronic cigarettes. Two of the products that DOJ investigated are e-cigarettes sold by Smoking Everywhere and NJOY. [/B]
[B]The national distributors for both products were served with official Notice that the Attorney General believes their promotion of e-cigs violates the UTPA and they were offered an opportunity to avoid litigation by agreeing not sell e-cigs in Oregon until it is determined whether these products must be approved by FDA. [/B]
[B]If electronic cigarettes do not need to be approved by FDA, the companies would be able to resuming selling e-cigs in Oregon so long as they possess evidence to support their promotional claims. Two vendors of electronic cigarettes – TA Travel Centers and Pilot Travel Centers – already signed such agreements. [/B]
[B]Both NJOY and SMOKING EVERYWHERE have voluntarily agreed to stop doing business in Oregon while we try to negotiate a settlement. Although DOJ is looking at a number of e-cig products, thus far, we are only taking action against NJOY and Smoking Everywhere.”[/B]
So there you have it – Straight from the horse's mouth (no offense intended, Mr. Hart).
[B] Oregon has NOT[/B] banned Electric cigarettes, ecigs, smokeless cigarettes, electronic cigarettes, or whatever you want to call ‘em. [B]CASE CLOSED.[/B]