2007 Grandfather Clause

[Mohamed]

I've been doing a bit of reading today in the Law and Legal sections. From time to time this "2007 Grandfather Clause" just pops up but is never discussed. From what I can gather it means that all ecigs made before 2007 can not be controlled in any way by the FDA. Can someone with more experience/knowledge explain this in detail for me.

Does it mean that if the FDA were to put some type of law into affect banning ecigs for whatever reason that I could only by products that were made in 2007 and prior? Does it mean that products with a patent and same technology as 2007 could or could not still be manufactured and sold?

What's the history of this and why is there a grandfather clause for 2007 and prior?

 

[Mohamed]

Sorry mods maybe this should be moved here. Legislation News I thought that's where I was posting...oops.

 

[Plastic Shaman]

Generally, a grandfather clause means that something that would be affected by new legislation is exempt from it. One example of this one of these exceptions can be seen in U.S Railroads Retirement Bd. v. Fritz, 46 U.S. 166. Basically, Congress changed the retirement system so that employees could not receive both retirement and social security benefits, which they had previously been allowed to do. However, the legislation allowed for people who were already receiving both benefits to continue doing so. This was the basis for an equal protection challenge that the supreme court denied, but that's an unrelated issue.

Anyways, I have not seen anything about this 2007 grandfather clause. However, my immediate assumption would be that it would allow devices made before 2007 would not be subject to any legislation. I doubt that it would apply to any devices made after the legislation in question, even if it was the exact same thing that was being made in 2007. Otherwise, a ban or regulation would be rather pointless if people could still produce a device as long as it was based off something that was developed in the past.

To illustrate the concept further, I'll make a comparison to criminal laws. Let's say that something that was previously illegal was made legal, or something like the death penalty is repealed. Those already subject to the punishment are not exonerated. So, if you are on death row and your state repeals the death penalty, you will still be on death row.

Again, I haven't read any of this. If you could provide a link, I could try to extrapolate a deeper meaning if one exists.

 

[Mohamed]

Yeah I understand the concept of "Grandfather Clause"...I was more interested in how/why it would apply to ecigs. I'll have to find some time and reread a few threads. I'm not exactly sure which threads it was in but think there were 2 posts in 2 different threads about it. It's been several weeks since I posted this thread and I'm wondering now if it didn't have something to do with pipe tobacco and rolling tobacco. As i said it's been several weeks I'll try to find the posts I was referring to.

 

[aikanae1]

From my understanding (which is not an educated or professional one) is that anything made before 2007 would not be regulated by the act signed in 2009.

That means that all analog cigarettes in the market would be unaffected and ecigs on the market before 2007 would be unaffected.

There is another clause stating "comparable" (and I don't recall the exact phrasing) would be approved. In 2007 the only ecigs on the market were cig-alikes. There recently was an approval for a new cig (backlog of over 3,000 applications for 5 years) and it was a cig-alike based on the "comparable standard". I think that's why major tobacco companies are comfortable investing millions into cig-alikes.

Like I said, I don't sit and study this stuff and wish there was another opinion on it.

 

[Plastic Shaman]

Under the grandfather clause, which will be important after the agency starts regulating e-cigarettes, tobacco products that were "commercially marketed in the United States" as of February 15, 2007, and "substantially equivalent" products introduced after that date are not subject to premarket approval. The FDA says evidence that a product qualifies for the grandfather clause may include "dated copies of advertisements," "dated catalog pages," "dated promotional material," "dated trade publications," "dated manufacturing documents," "dated bills of lading," "dated freight bills," or "dated waybills."

E-Cigarettes Will Remain Legal but Unregulated Until the FDA Issues New Rules - Hit & Run : Reason.com

You're quite right! Seems a little unusual, but that's not an area I study. I don't really see the point of regulation if you can't regulate part of the market, but the FDA might be not be concerned about it since there was so little on the market at that time.

This might also prompt an equal protection challenge to the law. You can't regulate one part of the industry and not another without some sort of rational basis. That is, if any of this comes to pass.

 

[Mohamed]

From my understanding (which is not an educated or professional one) is that anything made before 2007 would not be regulated by the act signed in 2009.

You have any links referring to the act signed. I still haven't taken time to find the 2-3 posts that I was referring to. They were literally in a thread with 10-30 pages and just 1 random post mentioning the 2007 grandfather clause but nothing explaining it.

 

[Mohamed]

Under the grandfather clause, which will be important after the agency starts regulating e-cigarettes, tobacco products that were "commercially marketed in the United States" as of February 15, 2007, and "substantially equivalent" products introduced after that date are not subject to premarket approval. The FDA says evidence that a product qualifies for the grandfather clause may include "dated copies of advertisements," "dated catalog pages," "dated promotional material," "dated trade publications," "dated manufacturing documents," "dated bills of lading," "dated freight bills," or "dated waybills."

E-Cigarettes Will Remain Legal but Unregulated Until the FDA Issues New Rules - Hit & Run : Reason.com

You're quiet right! Seems a little unusual, but that's not an area I study. I don't really see the point of regulation if you can't regulate part of the market, but the FDA might be not be concerned about it since there was so little on the market.

This might also prompt an equal protection challenge to the law. You can't regulate one part of the industry and not another without some sort of rational basis. That is, if any of this comes to pass.

Thanks been several weeks before this question even had second post. At least you are shedding some light on what I was referring too.

Does this refer only to vaping devices or would it also apply to ejuices that were sold prior to this date?

In regards to ejuice I also wonder if by "regulation" this refers only to safety/standards/licensing/etc of each vendor or does this also apply to taxation?

 

[Plastic Shaman]

Thanks been several weeks before this question even had second post. At least you are shedding some light on what I was referring too.

Does this refer only to vaping devices or would it also apply to ejuices that were sold prior to this date?

In regards to ejuice I also wonder if by "regulation" this refers only to safety/standards/licensing/etc of each vendor or does this also apply to taxation?

This is a really good question. I think that a large part of this issue is that most people, even the government, have little to no understanding of what is actually going on with e cigs. On one hand I guess that this could apply only to devices, since I don't really know how they would differentiate the things that were in the market back then from the actual juice inside. On the other hand, the devices aren't the actual thing causing the supposed harm. A mod or a atty isn't doing anything to you, it's the juice inside. This would be like taxing lighters. I guess they could say it applies to everything from that time period back, so if there were only certain types of devices and certain flavors/ ratios of juices existing at the time, then these would be allowed. But would this mean that these juices could only be sold free from regulation if they were already inside a cartridge since that's how most devices were marketed, manufactured, or shipped back then? Why would it make a difference and if challenged in a court? How would the FDA defend it's decisions?

Anyways, I'm just saying that regulatory agencies and others opposed to the whole thing have little understanding of the market and a simplistic plan for regulation that would create more questions then it would answer. And, like I said, they might have to do some justification on the reason for letting some things continue to be unregulated while others aren't when they serve the exact same purpose. Personally, I think the real question will not be about devices, but instead about the juices themselves, since they are separate products. Even this will create an issue. Will it be taxed by volume? by nic level? Who knows?

Anyways, I think the FDA will drag their feet until either the market gets big enough to pin some things down or there is a medical study showing negative health effects, unless some state lays out a comprehensive plan on how to regulate and tax the market.

But what do I know? Nothing, probably!

 

[Mohamed]

Well thanks again for at least responding to 2 week old post. I'm only a month into vaping so trying to absorb as much as I can.

 

[Luisa]

Well thanks again for at least responding to 2 week old post. I'm only a month into vaping so trying to absorb as much as I can.

GOOD FOR YOU! Go to the CASAA site. All the information you need should be there. You need to join CASAA. There are some many knowledgeable people that can help you. It is wonderful that you are interested enough to want to research the history of this fight to spread the TRUTH about e-cigs and keep them affordable and legal. Bill Godshall is a great resource. He has been in the trenches from the inception of e-cigs.

 

[Petrodus]

Those opposed to e-cigarettes and harm reduction HATE the truth ...
The only thing that hate more than the truth is
those who spread the truth to others.

 

[aikanae1]

My opinion is that areas are left vague for a reason. Often the writers want to write regulations more restrictive than they think will be accepted, but believe the courts will do a better job with less resistance from the population. Nic liquid is vague. They could restrict it to only what was in existance in 2007 - pre-filled cartridges. Anything else would be on someone else to challenge and prove in court (taking years).

Well thanks again for at least responding to 2 week old post. I'm only a month into vaping so trying to absorb as much as I can.

 

[ennagizer]

Establishing that a Tobacco Product was Commercially Marketed in the United States as of Feb 15, 2007

Also, see page 3 of this document (first column, middle of page)
http://www.gpo.gov/fdsys/pkg/FR-2011-07-05/pdf/2011-16766.pdf