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

[JerryRM]

Sun, what if the FDA doesn't appeal? What if they just decide to continue what they are doing now? What would happen then, would Judge Leon render a final decision, or would the case be stuck in limbo?

I hope this question hasn't been asked before, I am getting totally lost in this thread!

P.S. did the sticky thread get stuck? lol.

[Sun Vaporer]

Sun, what if the FDA doesn't appeal? What if they just decide to continue what they are doing now? What would happen then, would Judge Leon render a final decision, or would the case be stuck in limbo?

I hope this question hasn't been asked before, I am getting totally lost in this thread!

P.S. did the sticky thread get stuck? lol.

Hi Jerry--do not know if that sticky thread got stuck. But they had all info they needed!!


If, and that is a huge if, the FDA does not appeal, they would have 20 days to Answer the original Complaint actually filed by SE and NJOY. Believe it or not, we are still not at the point of an actual Answer. Then the tracking order would start for the Discovery process and onto a pretrial conference and then the trial.

But this case is more like what we called in the old days, a "Case Stated". As there really are no genuine issues of material fact in dispute and the issues that will resolve the case are all interpetations of the law, I would expect the parties to file cross motions for Summary Judgment and the case to be ruled upon by Judge Leon's review of pleadings submitted to the Court and his interpertation of the law.


Sun

[JerryRM]

Very good, Sun, the case will continue to move forward. Thanks.

Now, I have to get a dime, so I can call my mother and tell her that it is highly unlikely that I will ever become a lawyer. Remember the "Paper Chase"?

[Sun Vaporer]

Very good, Sun, the case will continue to move forward. Thanks.

Now, I have to get a dime, so I can call my mother and tell her that it is highly unlikely that I will ever become a lawyer. Remember the "Paper Chase"?

What is your name?

Bell, as in Liberty Bell.

Remind me to refrain from ringing you any further Mr Liberty Bell!!


LOL--The Paper Chase was a great movie and Kingsfield was a SOB!!


Sun

[JerryRM]

What is your name?

Bell, as in Liberty Bell.

Remind me to refrain from ringing you any further Mr Liberty Bell!!


LOL--The Paper Chase was a great movie and Kingsfield was a SOB!!


Sun

Yes, Sun, Kingsfield was a real SOB, a very arrogant, full of himself, SOB. John Houseman was a good actor. If I remember correctly and it was a long time ago (1973?), I think he taught corporate law?

[PhiHalcyon]

Phi--you are sleeping at the wheel my Friend---the FDA did argue "even arguendo's" and they all failed. The fact that the new law would be grounds for defeating the attempt to strike the embargo, gave the FDA the right to argue that, but it did not because it was a failed argument.

Sun

You were right in saying that I was sleeping at the wheel. For, in having allowed the pressure of the comment deadline to cause me to desperately entertain the false belief that the FDA could CHOOSE to regulate the current manifestation of the ecig/e-liquid concept as a tobacco product, I was still giving that false belief more credit than it deserves. Fortunately, my two comments to the FDA (that were based on that false belief) were never properly received - which afforded me an opportunity to submit my final paradox-resolving conclusions as my 'official' comment in their stead.

So, I do now agree that the FDA cannot exclude ecigs and e-liquids from entry into the U.S. on the basis of them being 'adulterated tobacco products'; but my reason for believing this has nothing to do with Judge Leon's ruling, and everything to do with my conclusion that current ecigs and e-liquids are not regulable as tobacco products in the first place.

Interestingly, if you combine my conclusion that current ecigs and e-liquids are not regulable as tobacco products with Judge Leon's apparent support of the recreational non-therapeutic use of nicotine, what you have is the prospect of ecigs and e-liquids not being regulable at all. For, if they are not regulable as tobacco products, and their recreational non-therapeutic use would preclude them from being regulable as drug/device products, then no chapter of the FDCA would apply to them. In other words, the old line that ecigs are neither drug products nor tobacco products could actually hold true.

I would not want to bet on that proposition, however. For, even though products that are regulable as tobacco products cannot be classified as drug/device products on the sole basis of clause (C) of Section 201(g)(1) (i.e., "articles (other than food) intended to affect the stucture or any function of the body of man or other animals;"), products like ecigs and e-liquids (which are not regulable as tobacco products) COULD be classified as drug/device products on the sole basis of that clause. Theoretically anyway.

SE/Njoy may be inclined to want to take on the above challenge - so that perhaps the Supreme Court can finally address the nicotine-as-drug question (that the majority avoided in the Brown decision), but the more stable, certain, and conservative approach would be to redesign the ecig concept into a form that IS regulable as a tobacco product. Of course, there could always be a battle over what ratio of the consumable element of a product must consist of tobacco or tobacco derivatives in order to be regulable as a tobacco product, but in my 'official' comment to the FDA, I argued for the somewhat expansive and tenable standard of 'greater than 50%'. For, any other ratio chosen would be arbitrary in nature.

[Sun Vaporer]

Yes, Sun, Kingsfield was a real SOB, a very arrogant, full of himself, SOB. John Houseman was a good actor. If I remember correctly and it was a long time ago (1973?), I think he taught corporate law?

Contracts Jerry!! Contracts!!

You come into this thread with a skull full of mush and leave thinking like a lawyer!!! LOL


Sun

[mikes]

I have heard that an injunction only applies to the suing parties. This did not seem right to me, Therefore, I wondered what factual basis this belief was based upon.

A member then pointed me to the federal injunction law. Federal Rules of Civil Procedure - Rule 65

After reading it very carefully, I noticed something interesting. doesn't c expand the scope of the injunction to:

other persons who are in active concert or participation with anyone [/B] described in Rule 65(d)(2)(A) or (B). (the suing parties)

Therefore, doesn't the injuction apply to us if we bought from either smoking everywhere or njoy.

Does this seem correct or am i wrong?

[Sun Vaporer]

Mike, I can see how you might be able to take a read of Rule 65 that way, but that is not how the rule is legally interpetated.


Sun

[mikes]

What makes you say that?