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NY legislators confused on effect of proposed ecig bills?

Discussion in 'Law and the E-Cigarette' started by yvilla, Apr 25, 2010.

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  1. yvilla

    yvilla Ultra Member Verified Member ECF Veteran

    Nov 18, 2008
    Rochester, NY
    I received some news today that shocked me (if it is not simply a lie). And that is that the Chair of the Senate Health Committee apparently believes that S7234/A9529 does NOT ban the sale of ecigs to adults, but only to minors.

    I immediately wrote an email to him and all the members of the Senate Health Committee (and to the staffer/director of the Health Committee). I will also be snail mailing it. I am posting it here instead of the CASAA forum because I was so agitated by the news I didn't want to wait and consult with everybody, so wrote it as an individual. Here it is, in the hopes that others will incorporate some of its thrust into their contacts with Senators, as we still need to push very hard to defeat S7234:

    The Honorable Thomas K. Duane
    Chair, Senate Health Committee
    430 State Capitol Building
    Albany, NY 12247

    Re: S7234 - Currently pending before Senate Health Committee
    Would it ban sales to adult consumers, or only sales to minors?

    Dear Senator Duane:

    It has come to my attention that you are of the belief that S7234, if passed as currently written, would only ban sales of electronic cigarettes to minors. Indeed, that is what S6621 would accomplish, and I would support that bill without reservation.

    However, S7234 is identical to A9529, and Linda Rosenthal, its Assembly sponsor, has gone on record stating that it is intended, in fact, to ban the sale of electronic cigarettes to adults, as well as to minors. You can hear her state this explicitly within the first four minutes of this recording of the discussion in the Assembly on April 21, 2010, held just prior to the unfortunate passage of A9529.

    It is Section 2 of S7234/A9529 that creates the problem for adult consumers. It states, in part:

    S 2. The public health law is amended by adding a new section 1399-mm-1 to read as follows:


    Assembly Member Rosenthal is acting under the misguided and mistaken impression that electronic cigarettes are not “tobacco products”, but are rather smoking cessation aids, and she intends that her bill require prior approval of the products by the FDA before they should be allowed to be sold in New York State at all.

    Thus should S7234/A9529 pass as written, it is evident that the legislation would invite litigation precisely on the question whether electronic cigarettes are “tobacco products” allowed to be sold to adult consumers in New York, or instead are prohibited altogether unless and until “approved” by the FDA.

    This result would be tragic indeed for the thousands of New York consumers who have already made the switch from traditional tobacco cigarettes to the smokeless and thus orders of magnitude less harmful electronic cigarette, and for the multitudes who would be prevented from doing so in the near future.

    The likely litigation would also constitute a legal battle that, I submit, is not appropriately carried out on the state level at all, but that rather should be deferred to the federal courts, in the midst of deciding it as we speak. (Smoking Everywhere v. FDA, Civil Case No. 09-771 (RJL) now on interlocutory appeal, with the briefing schedule in the Court of Appeals set to conclude by July 22, 2010, with a view toward oral argument in September 2010).

    Key to understanding the current rather unclear legal status of electronic cigarettes in the US at this time is that when they were first imported, the FDA had no regulatory oversight whatsoever over tobacco products. See, FDA v. Brown & Williamson, 529 U.S. 120 (2000),

    First imported into the US in late 2006 or early 2007, electronic cigarettes were never intended as a “smoking cessation” device, but rather simply as an alternative to smoking conventional cigarettes. (The first import ruling locatable at the US Customs and Border Protection website is dated August 22, 2006.

    However, as sales and consumption of electronic cigarettes grew exponentially within the US, cutting into the profits of pharmaceutical and tobacco industry giants alike, by early 2009 the FDA began detaining shipments and issuing letters to retailers, as well as statements to the media, informing that it now regarded electronic cigarettes it had reviewed to be “new drugs” requiring approval under Chapter 5 of the FDCA before being marketed in the US. For example, here is the statement of one FDA spokesperson as reported at News24 on February 28, 2009:

    "In the US, the Food and Drug Administration has "detained and refused" several brands of electronic cigarettes because they were considered unapproved new drugs and could not be legally marketed in the country, said press officer Christopher Kelly. He did not give more details, but said the determination of whether an e-cig is a drug is made on a case-by-case basis after the agency considers its intended use, labeling and advertising.",00.html

    That FDA detention and refusal of electronic cigarette shipments into the US ultimately resulted in the lawsuit cited above, currently pending in the US District Court for the District of Columbia, filed in April 2009 by Smoking Everywhere and later joined by NJOY. The court was asked to enjoin the FDA from regulating electronic cigarette products as a drug device combination, and from denying their entry into the US.

    Of major import during the pendency of the lawsuit, on June 22, 2009 the Family Smoking Prevention and Tobacco Control Act (FSPTCA) was signed into law, granting regulatory authority over tobacco products to the FDA for the first time in US history. The parties fully briefed the impact this new legislation would have on the issues presented in the lawsuit, and the District Court’s decision granting a preliminary injunction in favor of Smoking Everywhere and NJOY was rendered on January 14, 2010.

    The court agreed with the plaintiffs that the FSPTCA supported their argument that electronic cigarettes were not subject to regulation as a drug or drug-device combination: “Under the Tobacco Act, FDA may now regulate tobacco products, which the Act defines as ‘any product made or derived from tobacco that is intended for human consumption,’ 21 U.S.C. §321 (rr) (l), but it cannot regulate those products as it would a drug or device under the FDCA, id. §387a (a). There being no dispute that the nicotine in plaintiffs' electronic cigarettes is naturally distilled from actual tobacco and is intended for human consumption (FDA Supp. Br. [#41] at 5 n.3), plaintiffs assert that their electronic cigarettes qualify as a tobacco product and are therefore exempt from regulation as a drug-device combination.” Id, at 9-10.

    The court also agreed with the plaintiffs that the fact that they advertise their products as a healthier alternative to traditional smoking does not mean that electronic cigarettes qualify as a drug-device combination under the FDCA: “The Court has already concluded based on the information before it that the electronic cigarettes marketed by plaintiffs are not intended for treating the disease of nicotine addiction. To the extent those products are marketed as providing the same experience as traditional cigarettes but without the negative health consequences associated with tar and smoke, they fall within the plain meaning of ‘modified risk tobacco product,’ which the Tobacco Act defines as any tobacco product ‘sold or distributed for use to reduce harm or the risk of tobacco-related disease associated with commercially marketed tobacco products.’ ld. §387k(b)(1). To treat as a drug any tobacco product that merely claims to be a healthier alternative would effectively nullify the provisions relating to modified risk tobacco products, which represent Congress's implicit acknowledgment that those products were outside of FDA's jurisdiction prior to the Tobacco Act.” Id, at 25-26.

    Thus the court went on to rule: “In sum, absent substantial evidence of the manufacturer's objective intent that its electronic cigarettes affect the structure or function of the body in a way distinguishable from ‘customarily marketed’ tobacco products or that its electronic cigarettes have the therapeutic purpose of treating nicotine withdrawal, there is no basis for FDA to treat electronic cigarettes, as they are marketed by the plaintiffs in this case, as a drug-device combination when all they purport to do is offer consumers the same recreational effects as a regular cigarette. Thus, the plaintiffs are substantially likely to succeed on their claim that FDA cannot regulate and thereby exclude their electronic cigarettes from the United States on the basis that those products are an unapproved drug-device combination under the FDCA.” Id, at 26.

    To the FDA’s claims that electronic cigarettes constituted a danger to public health, the court responded: “While FDA's interest in protecting public health and safety is, in the abstract, paramount to plaintiffs' purely economic interests, given the particular facts and circumstances of this case, I am not convinced that the threat to the public interest in general or to third parties in particular is as great as FDA suggests. Together, both Smoking Everywhere and NJOY have already sold hundreds of thousands of electronic cigarettes, yet FDA cites no evidence that those electronic cigarettes have endangered anyone. Nor has FDA cited any evidence that electronic cigarettes are any more an immediate threat to public health and safety than traditional cigarettes, which are readily available to the public. Furthermore, now that FDA has regulatory power over electronic cigarettes through the Tobacco Act, any harm to the public interest or to third parties caused by an injunction that merely forbids FDA from regulating electronic cigarettes as a drug-device combination is greatly diminished.” Id, at 30-31.

    In sum, given the ever mounting evidence that electronic cigarettes are in fact a much healthier alternative to smoking conventional cigarettes for those who choose to switch to them instead (see links below), it would be a devastating blow to public health in New York State for lawmakers to blindly follow the disingenuous and misleading statements of those working to effect their outright ban, primarily lobbyists for so-called health groups who are merely fronting for their funders in the pharmaceutical industry.

    Thus I urge you to either amend S7234 to delete its possibly ambiguous but definitely contentious section 2, thereby rendering it a sensible bill to prohibit the sale of electronic cigarettes to minors only, or reject it altogether and instead support S6621, which already unambiguously prohibits sale to minors only.

    Very truly yours,

    Yolanda Villa, Esq.

    xc: Denise Soffel, Ph.D.
    Senate Health Committee members
  2. yanks21

    yanks21 Super Member ECF Veteran

    Feb 17, 2010
    New York
    This is truly disturbing especially as Linda Rosenthal SPECIFICALLY stated when questioned that it was a blanket ban not just one limited to minors.

    I also wanted to tear my hair out of my head when "the smoker" started talking about his 11 year old nephew without the slightest hint of irony. :rolleyes:

    If you're so worried about your 11 year old nephew just ban the sales to minors! MUCH easier to enforce and a stance all can agree on.
  3. suddenly

    suddenly Ultra Member ECF Veteran

    Nov 26, 2009
    The Secret Garden
    ;)Thank you so much for being on top of this.
  4. firechick

    firechick Ultra Member Verified Member ECF Veteran

    Jun 24, 2009
    Upstate New York
    Well worded, Counselor.
  5. beebopnjazz

    beebopnjazz PIF FORUM MODERATOR Verified Member ECF Veteran

    Supporting member
    Jan 20, 2010
  6. whimzkool

    whimzkool Super Member Verified Member ECF Veteran

    Nov 29, 2009
    Brilliant... hope some take the time to read it.
  7. aubergine

    aubergine Ultra Member ECF Veteran

    Jan 22, 2010
    Thanks Yolanda. I'm finding this all very muddled, too rapid, and confusing. Glad someone is on top of it.
  8. rosesense

    rosesense ECF Guru Verified Member ECF Veteran

    Jan 1, 2010
    western WA
    Great letter, thank you for writing it. I also hope they read it.
  9. Ragman

    Ragman Super Member Verified Member ECF Veteran

    Sep 19, 2009
    Hamlin, New York, USA
    Excellent Yolanda. Glad to see a fellow Rochesterian educating our comrades as well as our state senate.
  10. Oliver

    Oliver ECF Founder, formerly SmokeyJoe Admin Verified Member ECF Veteran

    Thanks Yolanda - that's a superb letter. I do hope there is some follow up on this.
  11. Katya

    Katya ECF Guru Verified Member ECF Veteran

    Supporting member
    Feb 23, 2010
    If you're so worried about your 11-year-old nephew, DO NOT SMOKE YOURSELF. Children imitate the grownups in their families.

    Brava, Yolanda. These people are so completely clueless, they don't even know what they are voting for or against. Scary to watch how our laws are enacted.
  12. Our House

    Our House Super Member ECF Veteran

    Apr 29, 2009
    NJ, USA
    Speaker: I've never seen one of those things. What is an electronic cigarette?
    Linda R: An electronic cigarette is, well, there's a kiosk in the mall here in Albany which sells these devices to minors and anybody else who can afford to buy them.

    ARE YOU FREAKIN' KIDDING ME??!! That's what her description of what an electronic cigarette is?? If I ran that kiosk in Albany my lawyer and I would be ALL OVER HER right now.
  13. Our House

    Our House Super Member ECF Veteran

    Apr 29, 2009
    NJ, USA
    By the way, excellent letter yvilla. I really hope the health committee takes time to read it.
  14. Debs63

    Debs63 Full Member

    Apr 24, 2010
    Ithaca NY
    WOW excellent letter. Too bad our government representatives don't do the research you have done. Off to write my letters.

    Of course I have a friend in Ohio that will be more than happy to order the juice for me and mail it in a plain brown box. The crap we have to go thru to live in NY is just not worth it.
  15. Bill Godshall

    Bill Godshall Executive Director
    Smokefree Pennsylvania
    ECF Veteran

    Supporting member
    Apr 2, 2009
    The correct Albany addresses for NY Senate Health Committee members are below (the contact info which I previously posted didn't contain any fax numbers for 3 Senators, and didn't contain Albany fax numbers for 3 Senators).

    Calls, snail mails, faxes, and e-mails are all helpful. And if you already sent letters (via e-mail, snail mail or fax), follow it up with a call.

    Please write/fax/calll NY Senate Health Committee members:

    Thomas K. Duane, Chair
    430 Capitol Building
    Albany, NY 12247
    Fax 518-426-6846

    Hugh T. Farley
    706 Legislative Office Building
    Albany, NY 12247
    Fax (518) 455-2271

    Charles J. Fuschillo, Jr.
    615 Legislative Office Building
    Albany, New York 12247
    Fax 518-426-6823

    Kemp Hannon
    408 Legislative Office Building
    Albany, NY 12247
    Fax 518-426-6954

    Craig M. Johnson
    814 Legislative Office Building
    Albany, NY 12247
    Fax 518-426-6894

    Jeffrey D. Klein (bill sponsor)
    427 Capitol Building
    Albany, New York 12247
    Fax 518-426-6887

    Carl Kruger
    913 Legislative Office Building
    Albany, New York 12247
    Fax 518-426-6855

    William J. Larkin, Jr.
    406 Legislative Office Building
    Albany, NY 12247
    Fax 518-426-6923

    Betty Little
    506 Legislative Office Building
    Albany, NY 12247
    Fax 518-426-6873

    Velmanette Montgomery
    711 Legislative Office Building
    Albany, NY 12247
    Fax 518-426-6854

    Stephen M. Saland
    617 Legislative Office Building
    Albany, New York 12247
    Fax 518-426-6920

    John L. Sampson
    409 Legislative Office Building
    Albany, NY 12247
    Fax 518-426-6806

    Andrea Stewart-Cousins
    805 Legislative Office Building
    Albany, NY 12247
    Fax 518-426-6811

    Antoine M. Thompson
    902 Legislative Office Building
    Albany, New York 12247
    Fax 518-426-6969

    David J. Valesky
    416 State Capitol Building
    Albany, New York 12247
    Fax 518-426-6885

    George Winner
    415 Legislative Office Building
    Albany, NY 12247
    Fax 518-426-6976

    Catherine Young
    513 Legislative Office Building
    Albany, New York 12247
    Fax 518-426-6905
  16. v1John

    v1John Vaping Master ECF Veteran

    Mar 23, 2010
    New York could be running out of time now, couldn't personal visits to representatives from their community vapers be helpful?
  17. jeanblackwood

    jeanblackwood Senior Member ECF Veteran

    Apr 24, 2010
    Fort Pierce Florida
    After I heard that I couldn't even listen any more . I stopped it and went back later.I was so I rate . The Government is so ignorant as well as well as the judge ruling . I hope these judges do their homework or we are all DOOMED !! Maybe they will check out ECF . That would be a good place to start . ;)
  18. lonercom

    lonercom Super Member ECF Veteran

    Feb 1, 2010
    St. Petersburg, Fl
    Rebuttal to NY ALA. Please use freely.

  19. the86d

    the86d Ultra Member Verified Member ECF Veteran

    Sep 13, 2009
    So. California, USA
    UnEffin' Believable!

    I guess it REALLY show how much politicians actually research before voting! Vote them out!

    Bla! (That's me being Pissed!)

    Ignorant fools, bastage lobbyists?
  20. duke118

    duke118 Full Member ECF Veteran

    May 9, 2009
    Long Island, N.Y
    Man that old fat cow has no Idea what the hell she's talking about? What minors where they sold to? God help us!
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