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

[LaceyUnderall]

I do agree we should put a consumer organization together. I'm currently looking at forming one and attempting to get government grant money to move this cause forward.

Right To Vape - Index is the furthest along right now.... and your grant could be put to very good use

[jmdjax]

I have a quick question.

I know that smokestik has taken the nicotine out of there cartridges. Is this going to make a difference?

[chad]

I don't get why they fight for some thing this inconsequential...

The assumption that this is inconsequential is wrong. There is ALOT of money ultimately riding on how the US will classify and regulate PVs.

[Spikey]

Late for a meeting.. but it is relevant that legislation for me locally on Long Island which was just passed said that these should be regulated AS cigarettes and therefore we may only use where cigarettes are ALLOWED. Meaning that if the county executive signs it to law... we will be forced to vape in smoking areas only. A # of things this means to the SE/Njoy case...

1-if e-liquid = tobacco.. will be taxed like it
2-we must use in smoking areas (and be exposed to shs and therefore get urges for cigarettes and many newbies go back to smoking)
3-we will be treated like smokers (secondhand citizens) although what we are doing may not harm anyone else.

The local kiosk owner here is filing to appeal that the law would ruin his business if consumers could not test the product and that it is unconstitutional to treat a device like something else cause it "looks like it". If that appeal/case goes thru before SE/Njoy.. it will set a precedent. I am trying to get more info on what arguments he is using and provide him more info.

[Spikey]

I did nt read all of the last few pages... if I still can/need to file the amicus whatever thing.. someone PM and let me know... I am not at my own comp and cannot take the tiem to read thru everything now...

[ladyraj]

Shipments seized by the FDA occurred in March, the new FDA rules came into effect in July via the FSPTA. Prior to the FDA being awarded the right to regulate tobacco the FTC regulated tobacco products and their derivatives.

Wouldn't the FTC rules apply to this case since the FDA seizing shipments occurred before the FSPTA was enacted? If e-cigs are drug-delivery devices and the FDA had to act to protect the public...why only 2 suppliers? Why so few shipments held up? Why haven't the FDA banged down the doors with cease and desist orders?

The FDA has done nothing...ASH has been behind contacting the AG, paypal, facebook, etc. This is the same way ASH went after tobacco companies. Insidious political shenanigans. If the FDA has not bothered to STOP e-cigs...one has to wonder WHY?

[yvilla]

Late for a meeting.. but it is relevant that legislation for me locally on Long Island which was just passed said that these should be regulated AS cigarettes and therefore we may only use where cigarettes are ALLOWED. Meaning that if the county executive signs it to law... we will be forced to vape in smoking areas only. A # of things this means to the SE/Njoy case...

1-if e-liquid = tobacco.. will be taxed like it
2-we must use in smoking areas (and be exposed to shs and therefore get urges for cigarettes and many newbies go back to smoking)
3-we will be treated like smokers (secondhand citizens) although what we are doing may not harm anyone else.

The local kiosk owner here is filing to appeal that the law would ruin his business if consumers could not test the product and that it is unconstitutional to treat a device like something else cause it "looks like it". If that appeal/case goes thru before SE/Njoy.. it will set a precedent. I am trying to get more info on what arguments he is using and provide him more info.

Spikey, that classification as a "tobacco product" means smoking areas for use in public does not necessarily follow. "Tobacco product" ≠ "smoking". "Tobacco product" ≠ the "combustion" or "igniting" of any tobacco material - which is what all currently enacted smoking bans or clean air acts forbid in public places.

You know that - you just went through a prolonged battle to fight that new legislation at your local level, because without that new legislation that actually changed the definiton of smoking to include the use of ecigs, oh so stupidly, Suffolk County could not have harassed anyone for ecig use in public places. But the new legislation wasn't passed because of how ecigs are "classified", it was passed out of ignorance, stupidity, irrational thinking, insert whatever other myriad of reasons here.

"Tobacco products" include things like Stonewall tablets, like snus, things that just as the ecig do not involve combustion and are infinitely safer ways to obtain nicotine than through smoking. And that have nothing do with the smoking bans that target combustion either.

So yes, we may all have plenty of fighting to go through yet, but that fight should not and cannot be directed against "classification" as a "modifed risk tobacco product" under the new federal tobacco legislation. For that classification, in and of itself, does not relegate us to smoking areas at all, and is the only thing that will save us from "drug" product classification, which could either kill off the growth in use of ecigs here in the US altogether, or at the very least cause terrible delays - in years - before they become available again. And who wants to go around with a $200.00 tampon sticking out of their mouth, that they can only get via prescription?

[bitey]

Side question (for anyone, lawyer or otherwise, who knows the answer):

Are logical fallacies permissible in court?

Not only are they permitted, in some areas of the law they are required, based upon precedent.

[sagsag]

Hello everyone,

I'm new here, but did anyone see this?

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Electronic Cigarette Seller Sued - Fines and Penalties Sought
A major retailer of electronic cigarettes has been sued in a multi-count civil action which seeks penalties of $25,000 for each sale as well as refunds to customers. Several other sellers of electronic cigarettes have avoided suits by entering into voluntary settlements, says public interest law professor John Banzhaf of Action on Smoking and Health (ASH), the organization which wrote to state attorneys general asking them to bring this type of legal action against the sellers.

According to the complaint, Smoking Everywhere “did not submit their electronic cigarettes to FDA for pre-approval because Defendants believed that they found a regulatory loophole that allowed them to sell electronic cigarettes without FDA approval, so long as the devices were not sold as smoking cessation devices.”

But the FDA “has already declared that electronic cigarettes are subject to FDA
approval as a drug or medical device, much like nicotine patches, gum and inhalers — and therefore they are illegal until they are cleared,” and has stated that electronic cigarettes are “unapproved new drugs and/or misbranded drugs or devices,” and appear “to be a combination drug-device product that requires pre-approval, registration and listing with FDA.”

Banzhaf notes that there is legal precedent for classifying products as drugs or drug devices even if the sellers make no claims whatsoever as to their use.

The complaint charges that Smoking Everywhere has engaged in the “deceptive sale and promotion of electronic cigarettes” which “causes immediate harm to public health, safety, and welfare.” It says defendants made claims which were deceptive because “Defendants did not possess such evidence because such evidence does not exist.” These claims included that e-cigarettes “are safer than traditional cigarettes.”

The complaint also charges that Defendant wrongfully claims that its product contain “no harmful carcinogenic ingredients” and are “free of [cigarette-type] tar.”

Defendants were also charged with failing to warn customers that “nicotine can cause dangerous increases in heart rate and blood pressure and should not be used by individuals with hypertension or heart disease.”

Smoking Everywhere was also cited for “target[ing] adolescents and youths who are likely not already addicted to nicotine” and for “knowingly and unconscionable targeting ‘kids” by, among other things, telling listeners to the Howard Stern radio show that “for kids out there, you still look cool ’cause it still looks like a cigarette.”

The complaint alleges that “as a result of Defendants’ unconscionable promotion of electronic cigarettes to young people, Defendants’ product likely will function as a gateway to tobacco abuse and nicotine addiction in young people.”

This civil law suit seeks “civil penalties of up to $25,000 for each willful violate of the Unlawful Trade Practices Act,” as well as full refunds to customers.

Previously, ASH, in a legal letter sent to PayPal, advised the company that providing payment for electronic cigarettes “appears to be aiding and abetting the sale of these illegal products by providing payment vehicles to Internet sites which are selling them, and doing so in interstate commerce and in possible violation of consumer protection laws in the individual states.”

PayPal was also warned that: “As the FDA and others have noted, electronic cigarettes pose a wide variety of potential dangers to users, and perhaps also to those around them, both of whom inhale a mixture of nicotine (a dangerous drug) and propylene glycol (which is used in antifreeze and may cause respiratory tract irritation

In response, PayPal is no longer facilitating the sale of this product. Facebook has reportedly decided that “we do not allow ads for electronic cigarettes and will not allow the creation of any further Facebook Ads for this product.”

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law and Executive Director
Action on Smoking and Health (ASH)
America’s First Antismoking Organization
2013 H Street, NW, Washington, DC 20006, USA
(202) 659-4310 // (703) 527-8418 // ash.org
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How shame!

[Vaporer]

The Professor better get his facts straight.
Since PayPal elected to follow this and stop transactions from sites that sell e-cigs and accesories I contacted PayPal directly with a site that hurts our cause with the Cialis liquid on 8-17-2009. Cialis is only prescribed by a Dr.
By the moderators request I cannot post the URL. The thread I posted it in and my letter to PayPal for stopping reputable suppliers and not this site was closed.
As of 8-28-2009 the site still cannot accept credit cards but appears to be accepting PayPal and have no other updates.

From their site 8-28-2009 2:45pm EST
"13 August 2009 - Credit Card Processing available soon
We can not take the credit card for the payment at the present time as we are setting up new system for processing the credit card. Our new credit card processing system will be ready soon. By the mean time, you can make the payment by your Paypal account or by Bank Transfer or Western Union."

I refuse to create an account with them to go to the checkout.

Seems like there is some targeting going on to me.