Is Spending MSA Money Fighting Vaping Legal?

[NorthOfAtlanta]

Interesting take on this, wonder where it will end up.

Lawmaker says anti-tobacco agency may be breaking law by opposing vaping - Watchdog.org

 

[Jman8]

This is the kind of fighting fire with fire I like to see.

 

[nicnik]

Interesting take on this, wonder where it will end up.

Lawmaker says anti-tobacco agency may be breaking law by opposing vaping - Watchdog.org

My comment is in regards to the thread title. Unless I misunderstand, the issue isn't the use of MSA funds. The quote from the letter: “I am concerned this activity constitutes the use of state dollars for a purpose that has not been approved by the Legislative Assembly.”

MSA funds get used for almost anything, usually very little of it for smoking related work. I'm pretty sure plenty of the MSA money North Dakota gets is spent in completely unrelated areas. The problem here is that the agency wasn't given authorization to use any of the state's money for anti-vaping activities. It sure seems illegal to me.

Legality issues aside, I am sickened by how much of the money that funds TC is spent to try to destroy vaping.

 

[NorthOfAtlanta]

My comment is in regards to the thread title. Unless I misunderstand, the issue isn't the use of MSA funds. The quote from the letter: “I am concerned this activity constitutes the use of state dollars for a purpose that has not been approved by the Legislative Assembly.”

Took my title from the complete quote,

“Money from the tobacco settlement is being spent by the North Dakota Center for Tobacco Prevention and Control Policy to discourage the use of e-cigarettes in the form of literature, verbal communication, and advertising,” the letter obtained by Watchdog states. “I am concerned this activity constitutes the use of state dollars for a purpose that has not been approved by the Legislative Assembly.”

I think as you did he is also questioning the other uses that the MSA is being used for in a backdoor way, it is a watchdog organization.

 

[pennysmalls]

The fact that nothing has been done or even much said about how the MSA funds are now used baffles me. I'd love to see this get lots more attention.

 

[nicnik]

Took my title from the complete quote

I don't see that in the complete quote, either. Yes, he says it's MSA money, but that's not what he's questioning the legality of.

 

[pennysmalls]

My comment is in regards to the thread title. Unless I misunderstand, the issue isn't the use of MSA funds. The quote from the letter: “I am concerned this activity constitutes the use of state dollars for a purpose that has not been approved by the Legislative Assembly.”

MSA funds get used for almost anything, usually very little of it for smoking related work. I'm pretty sure plenty of the MSA money North Dakota gets is spent in completely unrelated areas. The problem here is that the agency wasn't given authorization to use any of the state's money for anti-vaping activities. It sure seems illegal to me.

Legality issues aside, I am sickened by how much of the money that funds TC is spent to try to destroy vaping.

The impression I got was that the North Dakota Center for Tobacco Prevention and Control Policy is attacking ecigs as a tobacco products without proof that ecigs are in fact tobacco products, so they may be mis-using state dollars intended for the fight against tobacco . In other words, this particular agency is stepping out of it's bounds. I know MSA funds do get used to fund all kinds of things but I do believe there is probably some assigning of those funds to each agency and those funds are to be used only as intended by said agency. So funds for roadwork cannot be used for anything but roadwork, funds for the fight against tobacco can only be used for the fight against tobacco etc.

The title of this thread makes perfect sense to me in this instance.

 

[nicnik]

The fact that nothing has been done or even much said about how the MSA funds are now used baffles me. I'd love to see this get lots more attention.

Yes, that too. Not nearly enough attention, but I am especially sickended about how much of TC's funding, especially the MSA money, is used to try to stop people from using vaping to stop smoking. And with their dishonest hardball tactics, it amounts to a huge scandal.
ETA: The misuse of TC funds that bothers me most, is the demonizing of smokers and vapers.

 

[nicnik]

The impression I got was that the North Dakota Center for Tobacco Prevention and Control Policy is attacking ecigs as a tobacco products without proof that ecigs are in fact tobacco products, so they may be mis-using state dollars intended for the fight against tobacco . In other words, this particular agency is stepping out of it's bounds. I know MSA funds do get used to fund all kinds of things but I do believe there is probably some assigning of those funds to each agency and those funds are to be used only as intended by said agency. So funds for roadwork cannot be used for anything but roadwork, funds for the fight against tobacco can only be used for the fight against tobacco etc.

The title of this thread makes perfect sense to me in this instance.

Your post makes perfect sense to me until the last sentence.

 

[Kent C]

Your post makes perfect sense to me until the last sentence.

To parse out the title a bit: Is it legal to use MSA funds to stop(fight) vaping?

In the letter from Schatz - linked in the piece:
http://watchdog.wpengine.netdna-cdn.com/wp-content/blogs.dir/1/files/2015/08/Schatz-Letter.pdf

"Measure 3, effective December 4, of 2008, which created North Dakota Century
Code Chapter 2342, does not mention the words "vaping" or "ecigarettes"
but Ms. Prom has decided that smoking cigarettes and vaping are fundamentally the same.

Money from the tobacco settlement is being spent by the North Dakota Center for
Tobacco Prevention and Control Policy to discourage the use of ecigarettes
in the form of literature, verbal communication, and advertising."

Measure 3:

http://watchdog.wpengine.netdna-cdn.com/wp-content/blogs.dir/1/files/2015/08/measure3law.pdf

He is right that there is no mention of ecigarettes in Measure 3 - which is law, and therefore going beyond the scope of the law would be illegal.

Not only that - there is one provision in the law that states:

"The advisory board shall: ...

c. Develop the initial comprehensive statewide tobacco prevention and control program that includes support for cessation interventions, community and youth interventions, and health communication; ..."

... which could be interpreted legally by promoting a plan for ecigarette use for smoking cessation - even though it's not stated explicitly. Similar 'charges' might be made if that ever happened. "It's not in the wording of the document!" - even thought ecigs promote tobacco prevention and control. But as stated - it appears the title does represent the views shown. Schatz thinks it's illegal to attempt to use MSA/Measure 3/ND Center for Tobacco Prevention (they're all related - with out MSA the other two don't exist) for anti-ecig promotions. I would agree.

 

[nicnik]

Shatz thinks it's illegal to attempt to use MSA/Measure 3/ND Center for Tobacco Prevention (they're all related - with out MSA the other two don't exist) for anti-ecig promotions.

Nothing in the article or Schatz's letter suggests he's questioning the legality of MSA funds in general being used to fund the anti-vaping stuff, just THOSE particular MSA funds, or ANY funds, because the agency hadn't been authorized (by the voters) to do anti vaping work when it was created (by public referendum).

 

[Kent C]

Nothing in the article or Schatz's letter suggests he's questioning the legality of MSA funds in general being used to fund the anti-vaping stuff, just THOSE particular MSA funds

Ok... I see what you're saying, but that's quite a nitpik, imo. It is MSA funds that are in question because of the link to Measure 3 and NDCforT - so again, without MSA there is no case at all.

 

[nicnik]

Ok... I see what you're saying, but that's quite a nitpik, imo. It is MSA funds that are in question because of the link to Measure 3 and NDCforT - so again, without MSA there is no case at all.

Not a nitpick IMO.

 

[skoony]

The impression I got was that the North Dakota Center for Tobacco Prevention and Control Policy is attacking ecigs as a tobacco products without proof that ecigs are in fact tobacco products,

the FDA has deemed e-cigs a tobacco product. that is why they are going
to regulate them.
get used to the term 'tobacco product'.
i predict within a year even news story's will
not be using e-cigarettes or any vaping related
term when writing about us. we are users of
a new generation of tobacco products.
the FDA has said so,more and more local
governments are saying so,it must be true.

regards
mike

 

[AndriaD]

the FDA has deemed e-cigs a tobacco product.

Not yet they haven't.

Andria

 

[Endor]

Not yet they haven't.

True, in lieu of that, states themselves are trying to categorize e-cigs as "tobacco products" (e.g. California's SB-140)... and why advocacy has fought these attempts so strongly.

This story is a perfect example of why it is important to keep e-cigs out of the "tobacco product" umbrella.

 

[pennysmalls]

the FDA has deemed e-cigs a tobacco product. that is why they are going
to regulate them.
get used to the term 'tobacco product'.
i predict within a year even news story's will
not be using e-cigarettes or any vaping related
term when writing about us. we are users of
a new generation of tobacco products.
the FDA has said so,more and more local
governments are saying so,it must be true.

regards
mike

Like Andria said, not yet they haven't. I know we're really close to that point, it's literally right around the corner, but it's not set in stone yet and these states trying to "go there" before it is is what the problem is. Even when, not if, the FDA does deem them tobacco products that won't be the final say. The final say will be when the court battles are over and the courts have decided, because this will "go there". I get the sarcasm in your post but I think the tide is turning. We've got some politicians here and there going rogue to support us and while they're few and far between right now I think more will be popping up.

 

[skoony]

Like Andria said, not yet they haven't. I know we're really close to that point, it's literally right around the corner, but it's not set in stone yet and these states trying to "go there" before it is is what the problem is. Even when, not if, the FDA does deem them tobacco products that won't be the final say. The final say will be when the court battles are over and the courts have decided, because this will "go there". I get the sarcasm in your post but I think the tide is turning. We've got some politicians here and there going rogue to support us and while they're few and far between right now I think more will be popping up.

they are in fact deemed. other wise the FDA could not be writing the deeming regs as we speak.
there will be no court cases. the FDA has the authority to do it.
listen to what they say. words mean something.
the term e-cigarette is being replaced with a new generation of
tobacco products in almost all official Federal Government statements
concerning vaping from the ANTZ side of the issue.
of course changing the grandfather date would help immensely but,
barring that the only thing that could change FDA regulations is Congress
stepping in and voiding it,or,writing the regs themselves.

regards
mike

 

[Bill Godshall]

My comment is in regards to the thread title. Unless I misunderstand, the issue isn't the use of MSA funds. The quote from the letter: “I am concerned this activity constitutes the use of state dollars for a purpose that has not been approved by the Legislative Assembly.”

MSA funds get used for almost anything, usually very little of it for smoking related work. I'm pretty sure plenty of the MSA money North Dakota gets is spent in completely unrelated areas. The problem here is that the agency wasn't given authorization to use any of the state's money for anti-vaping activities. It sure seems illegal to me.

Legality issues aside, I am sickened by how much of the money that funds TC is spent to try to destroy vaping.

Nic is correct.

The MSA is NOT the issue. But rather whether or not the State Health Dept spent State money (that was appropriated by the ND legislature for anti-tobacco programs) on anti-vaping programs and propaganda.

After the MSA was signed in 1998, many states enacted laws that appropriated a portion of the MSA funds (typically less than 10%) on tobacco cessation, prevention and/or control programs.

It would be wise to analyze the precise wording of these state laws (as well as state laws that appropriate a portion of tobacco excise tax revenue for tobacco cessation, prevention and/or control programs) and subsequently enacted laws to see if those laws allow State Health Departments to spend that earmarked money on anti-vaping propaganda (or lobbying to ban vaping, tax vapor products).

Since most of those state laws (that fund Health Depts for tobacco control programs) were enacted before e-cigs were invented, and since most of those laws do not include "e-cigarettes" or "vapor products" in their definition of "tobacco products", it could be unlawful for the Health Depts to spend that money criticizing vaping.

I also wonder if the federal law that appropriates money to CDC (and/or other federal health agencies) for tobacco cessation, prevention and control programs allows those federal health agencies to spend that money attacking vaping.

 

[Bill Godshall]

they are in fact deemed. other wise the FDA could not be writing the deeming regs as we speak.

The FDA has only proposed the deeming regulation. A proposed regulation does not become law (or valid) unless/until a Final Rule is issued.

there will be no court cases. the FDA has the authority to do it.

I'd be shocked if there aren't any court challenges to the deeming regulation (if FDA issues a Final Rule)
The only reason I submitted my 108 page comment to the FDA opposing its proposed regulation was to assist e-cigarette company lawyers when suing the FDA.

While DHHS has been trying to create the perception that the deeming regulation is a done deal, its not helpful when vapers repeat that FDA propaganda as if it were factual.