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

[Sun Vaporer]

I really hope you guys (suppliers) get together and implead yourselves into the case.
But don't you have to actually have shipments currently under seizure to be able to do so?

That is true DC2--there must be actual damages to have standing to implead into the case at bar. It can not be speculative. A letter from the FDA addressed specifically to them telling a Supplier that an attempt by them to import e-cigs would be a violation subject to embargo would also make the bar, as there is no other way for the Supplier to get inventory to stay in business without violating the law as the FDA "is interperting it".

Sun

[Goldbug]

Congressman Buyer,

I and a great many others need your help.

The FDA has seized shipments of electronic cigarettes, which look and taste like cigarettes but don't contain tar. Smoking Everywhere, one of the largest makers of electronic cigarettes, had challenged the FDA's authority over the products.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SMOKING EVERYWHERE, INC.,
Plaintiff,
and
SOTTERA, INC., d/b/a NJOY,
Intervenor-Plaintiff,
v.
Civil Case No. 09-771 (RJL)
U.S. FOOD AND DRUG
ADMINISTRATION, et aI.,

In a 32-page opinion, U.S. District Judge Richard J. Leon sided with electronic cigarette maker Smoking Everywhere Inc. in finding that the FDA has no authority to regulate the products and can't stop them from entering the country.

"This case appears to be yet another example of FDA's aggressive efforts to regulate recreational tobacco products as drugs or devices," Leon said in his ruling. He added the FDA's "tenacious drive to maximize its regulatory power has resulted in its advocacy of an interpretation of the relevant law that I find, at first blush, to be unreasonable and unacceptable." Quoted from the court decision.

Unfortunately many vendors like myself are still having our product "held" by the FDA. Forcing many of us out of business in these dangerous economic times. I have already laid off one employee and may be forced to close altogether.

This is a conversation from one vendor with US Customs and the FDA:
" I called and talked to the FDA Agent and tried to get something in writing saying they are only releasing SE/NJOY's products. She said she can't, that maybe the Division of Import Operations. I called them and spoke with John. He said that they are waiting from word from the FDA Headquarters in Washington DC to decide what they want to do in regards to all e-cigs. That right now they are taking the hardball approach and just releasing shipments for NJOY/SE. However, he said they have to make a quick decision because they are afraid of being sued again. He told me that if I have anything that is "Detained" that I should ask for a extension citing this case. He told me to call my FDA Agent daily for updates, because the FDA Headquarters has told him that he would have a decision as to how far they want to take it and how this ruling applies to everyone or if it does asap.

So, we move forward to calling the FDA in Chicago. I specifically called the Agent that sent me the “Refusal” letter. Agent Dorothy, her last name is very long. Anyway, I asked her about my package that is being held. She said it is still being withheld. I asked her when they are releasing it. She said “They are not releasing it”. I informed her that a federal judge ruled that the FDA doesn’t have the right to withhold them because they are not new drugs and are not drug delivery devices. They are “Tobacco like products” and therefore can not be stopped from being imported. She said, “Yes, I am aware of that, however, that only applies to the parties involved in the case. The two companies mentioned in the court order. Those will be released and not withheld. We have been instructed to withhold all electronic cigarettes and E-liquid unless it is for those two companies. If you have shipments or having new shipments coming in they will be withheld and refused from entering the country.”

At this time, I personally have many thousands of dollars in product "inbound into customs" with no further movement from them.

Your assistance in this matter is greatly appreciated!

Michael Cline
Indy Vapor Shop

[trs-80]

I was going to be more specific but the FL Statutes page appears to be down right now . This could be used as a model to fast track the legitimate import of ecig liquid and carts separate from the devices like pipes and pipe tobacco so we can still have bottles as well as carts. FL defines tobacco products as not cigarettes or cigars.

EXCISE TAXES AND SURCHARGE - OTHER TOBACCO PRODUCTS


25% of wholesale sales price (excise tax) $0.25 per $1.00 60% of wholesale sales price (surcharge) $0.60 per $1.00
get tbb tobacco import permit, fl tobacco licenses

this one "
45. RTPD . Retail Tobacco Products
Dealer ($50) 569.003
"

46. CWD . Cigarette Wholesale Dealer
($100) 210.15(1)
47. CDA . Cigarette Distributing Agent
($100) 210.15(1)
48. EXP . Cigarette Exporter ($100) 210.15(1)

and this one "
49. TWD . Tobacco Wholesale Dealer
($25) 210.40
"

50. CMFG . Cigarette Manufacturer
($100) 210.15(1)
51. CIMP . Cigarette Importer ($100) 210.15(1)

bonding and such for tax stamps and appointed through an application.
maybe SE ,and Greensmoke all FL Based can achieve something like this for FL and have FL set the standard for a change instead of Cali.

[Jayhawks]

I have had packages held by the FDA in Chicago since June. One cleared customs on Jan 13th and one was returned as unclaimed on Jan 14th. So FDA is doing something but I just dont know what yet..

Adam, you may have been blocked from the private area because your website is a BLOG not a web store anymore. So you are no longer considered a supplier. IMHO

I have no problem on joining a suit, but I am not going to start sending money to a guy that isnt even in business.

IMHO

[Territoo]

Adam, you may have been blocked from the private area because your website is a BLOG not a web store anymore. So you are no longer considered a supplier. IMHO

Perhaps it's because he doesn't have any product that he can sell that's not being held by customs.....

[Jayhawks]

Perhaps it's because he doesn't have any product that he can sell that's not being held by customs.....

If you dont have product to sell then you are not a supplier............
I have been hit hard by customs as many others have. And when that happens, you order more product and continue on if you care about your customers and your business.


Now lets this post return to what its suppose to be.. Updates about the docket.. This isnt the place to discuss anything but that.. Sorry SUN

[trs-80]

chapters 569.002 :
(6) "Tobacco products" includes loose tobacco leaves, and products made from tobacco leaves, in whole or in part, and cigarette wrappers, which can be used for smoking, sniffing, or chewing.
and 210 part two:
Part II: TAX ON TOBACCO PRODUCTS OTHER THAN CIGARETTES OR CIGARS (ss. 210.25-210.75)

[Adam]

Jayhawk,

Thanks for sharing your opinion about how a business should run. FYI, I had 7 shipments in a row get stopped by the FDA. They were all shipped to different addresses and names to give the best chance of getting thru. Obviously, if you have the money to keep attempting to get orders thru, then do so. But, at some point when you have several thousand dollars in held orders and can't get any more product in . There is a point when one says, "Hmm. If I can't get product in... Why keep wasting money trying this way... There's got to be a better way." So, Jayhawk, thanks for the low blow and good luck to you. To say that I never cared about my business and my customers because I stopped wasting money is ridiculous. I always cared about my customers, gave them good pricing and great service. They all knew why I stopped Vapor Options.

I could however make the same claim against you though. "You must not care about your customers or your business. Because if you did then you would have already joined the lawsuit so you could continue to do business without hiding under the radar. Instead of standing on the sidelines doing nothing, letting others fight the fight for you, but at the same time put other people down who are trying to fight." Which one seems to be the more fair and accurate? Probably both are wrong by both of us.

If you don't want to join Jayhawk, don't. It won't bother me either way. The money aspect would be signed with legal agreements showing where it all goes and for what. I have nothing to hide and don't blame anyone for my actions. If you have a better idea we would all love to hear it, because all I have read on this thread and others is a lot of people complaining and no one taking action. While others strike out at those who try to make a difference. Typical now a days I guess.

Keep Vaping,

Adam

[kristin]

If you dont have product to sell then you are not a supplier............
I have been hit hard by customs as many others have. And when that happens, you order more product and continue on if you care about your customers and your business.


Now lets this post return to what its suppose to be.. Updates about the docket.. This isnt the place to discuss anything but that.. Sorry SUN

Do the manufacturers not charge you for all of the product held in customs? How is Adam's situation any different from Smoking Everywhere's, only he's been harder hit? If you have no income coming in, because the FDA is holding all of your supplies, how do you pay for more product? Even Smoking Everywhere was getting to the point where they weren't able to keep selling, because of their items being held in customs. So would that mean they wouldn't be suppliers anymore?

Way to kick a guy when he's down.

[Jayhawks]

Jayhawk,

Thanks for sharing your opinion about how a business should run. FYI, I had 7 shipments in a row get stopped by the FDA. They were all shipped to different addresses and names to give the best chance of getting thru. Obviously, if you have the money to keep attempting to get orders thru, then do so. But, at some point when you have several thousand dollars in held orders and can't get any more product in . There is a point when one says, "Hmm. If I can't get product in... Why keep wasting money trying this way... There's got to be a better way." So, Jayhawk, thanks for the low blow and good luck to you. To say that I never cared about my business and my customers because I stopped wasting money is ridiculous. I always cared about my customers, gave them good pricing and great service. They all knew why I stopped Vapor Options.

I could however make the same claim against you though. "You must not care about your customers or your business. Because if you did then you would have already joined the lawsuit so you could continue to do business without hiding under the radar. Instead of standing on the sidelines doing nothing, letting others fight the fight for you, but at the same time put other people down who are trying to fight." Which one seems to be the more fair and accurate? Probably both are wrong by both of us.

If you don't want to join Jayhawk, don't. It won't bother me either way. The money aspect would be signed with legal agreements showing where it all goes and for what. I have nothing to hide and don't blame anyone for my actions. If you have a better idea we would all love to hear it, because all I have read on this thread and others is a lot of people complaining and no one taking action. While others strike out at those who try to make a difference. Typical now a days I guess.

Keep Vaping,

Adam

I am not going to get in a pissing match with you here.. But FYI I am more than willing to join a lawsuit but it will not be one started by you.. Thats all

Once again, this isnt the place for the rant.. Let Sun have their post back..