Smoking Everywhere V. FDA Daily Docket Sheet Update--APPEAL's COURT ISSUES STAY

[Sun Vaporer]

So, Judge Leon ruled that the e-cigarette (not just NJoy and SE) is a tobacco product and not a drug/device. Right? Therefore, at least for the present time, it is classified as a tobacco product.

Does the FDA prevent, on a large scale, any other tobacco products from entering the U.S.? Could their actions be construed as being prejudicial against e-cigs? Could their actions be considered as violating Judge Leon's ruling?

Remember Jerry, this "ruling" was a grant of a preliminary injuction granted to SE and NJOY barring the FDA from any further seizures of these two companes for the duration of this case. The ruling is personal to SE and NJOY. They are the ones that asked for the relief and they are the one's it was granted to.

Should the FDA turn its back on this unbinding ruling until we have a fully adjudicated permenant injuction on file, then there is not much we anyone can do about it absent being in the case.


Sun

[Sun Vaporer]

In federal court, it's a FRCP Rule 24 Motion to Intervene. In essence, you have a motion that states that the facts of your case are so similar to the pre-existing one, that they should be heard together. Usually you need to have either the same basic facts at issue, or the same basic law (the latter is the one that NJOY likely used, since their facts are not the same - THEIR shipments constitute a different fact, albeit similar ones)

Dillan--it was indeed all the same. SE and NOY challagend the underlying case that triggered the seizures, that being the FDA's Import Alerts. So same fact pattern and law is in play.


Sun

[JerryRM]

Thanks Sun, for the clarification. I "digg" it !!

[Adam]

Thank you Sun, I will be spending a lot of time tonight reading all your posts in this thread as you have a ton of experience and knowledge in this case. Plus, your posts are to the point and not a ton of what if scenarios. Facts rule the land and the game has to be played the same way.

I sent an email to my lawyer and asked if it is possible to have one lawyer represent a large group of comanies. I haven't heard back, but that might be wise for all of us ecig suppliers to get together and form a "wolf pack" so to speak against the FDA, instead of a bunch of people flying solo.

Is there any interest from US Suppliers to possibly do that? We would all pay in the same amount, but have one lawyer representing us all and no one would pay more then anyone else, that way it is fair. Any Interest? If there is enough Interest I will put out my plan for comments on by everyone. Post here if your interested and you believe there is strength in numbers.

Keep Vaping,

Adam

[CJsKee]

Just a suggestion, Adam...rather than clog up Sun's thread, might it be better to start a new one, or maybe post in the suppliers' section to see if you might round up support?

[Legal One]

I can't disclose the costs specifically but understand that a challenge of this magnitude is a 7 figure undertaking. Challenging the United States government with virtually ulimited resources is not cheap. I would encourage you to watch the ECA over the next few weeks and look for possible opportunities to have some level of participation in the process.

[Legal One]

possible opportunities for participation presented by ECA that is.

[Sun Vaporer]

I can't disclose the costs specifically but understand that a challenge of this magnitude is a 7 figure undertaking. Challenging the United States government with virtually ulimited resources is not cheap. I would encourage you to watch the ECA over the next few weeks and look for possible opportunities to have some level of participation in the process.

Legal One--I just think you do not want any company!!

Thanks for participating my Friend.


Sun

[rothenbj]

Questions:

1) We know that the FDA cannot completely remove nicotine from tobacco products. Is there a minimum, or can the FDA make it so smoking a cigarette and smoking an eggplant are the same?

2) Nicotine will need to be regulated in parts per x, right? Because "ecig cartridge" is not a standard unit of measure. Just don't want to see something stupid like 1 cig = 1 ecig.

These questions led me to the logical question, based on the history of tobacco and the antis. Back after BT produced light and ultra light cigarettes, the antis came out and insisted that these cigarettes were more dangerous than traditional cigarettes since the smoker "inhaled deeper and smoked more".

How is the FDA now going to reduce the dangers in smoking by reducing the nic levels in all cigarettes? To me, this appears to be an approach that would lead to increased smoking, not less.

Now, if they reduced nic levels in cigarettes and allowed higher levels in e cigs they may be able to get people off tobacco and on e liquid. Ah, to dream..........

[Canute]

Sun (and those with legal expertise and knowledge of tobacco regulation),

So I consider myself to be a relatively intelligent guy but fully admit to having no formal legal training (and sometimes I think even understanding since it often seems that common sense has zilch to do with it!).

E-cigs seem to be spoken of as if they were one single component....meaning battery, atty and a pre-filled cart referred to as one. I'm sure that if I take the time to review all this to the extent that many of you have I can find a clear definition of what is being referenced under the term "electronic cigarette" however I'm guessing you guys can answer this for me (and others I'm sure) quite easily. Is this case and subsequent ruling directed at the hardware alone? Meaning if an incoming shipment from China contained e-liquids only and no actual PV's is it or was it ever under threat of seizure?

Common sense would dictate to me based upon what I am hearing that we are/have been talking about the device itself and whether it was to be considered a drug delivery device. Again if I'm understanding correctly it has been determined that the device itself has been ruled to be a device 'similar in function' to that of a cigarette or recreational tobacco delivery device (pipe etc..).

For the concerns of e-liquid suppliers would I be correct in assuming that the topic of if and how e-liquids themselves are to be regulated is a matter completely separate from this ruling and as of yet not directly under fire? Furthermore would that not eventually have to boil down to regulation of liquid nicotine itself since regulation of PG, VG or artificial flavorings would be ludicrous? As I understand it, liquid nicotine is not considered a tobacco product but rather an over the counter drug legal for purchase by anyone over the age of 18. Is that not correct?

It seems to me that regulation of e-liquid would or could become a sticky conundrum for the FDA. While I may read many articles regarding politicians who clearly have done zero research regarding what ingredients are actually present in the typical e-liquid I would think in court it would quickly become evident that the only component present in e-liquid worthy of regulation would be the nicotine itself. It is my honest belief that none of this has been over the safety of the American people but rather it has been over the preservation of tax revenue and profits of two very powerful industries, big Tobacco and Pharmaceutical. If I am correct in this train of thought then I would think the FDA would not want to touch regulation of nicotine itself due to the impact such regulation would have on both those industries and subsequently revenue generated by their taxation.

So again I'm trying to wrap my head around all this in terms of what it means to us average non-legally educated vapers who want to know what this means in regards to our ability to log into our favorite suppliers website a month, two months or a year from now and order a PV....OR...a prepackaged Chinese manufactured e-liquid...OR...a custom 'mixed in the US' e-liquid. Are these vendors in any way more secure due to this ruling or are they going to have the authorities pounding at their door soon?

Is there a layman's answer to this?