Class Action Against the FDA

[thephoenix]

Hey, all.

I am wondering if anyone out there has the legal chops to answer this...

Let's say worst case scenario that the njoy case leans toward favoring the FDA in September and the ban stays in place.

What then are the chances of all of us filing a class action against the FDA to ensure our alternative to tobacco is available to us?

I can see how they can regulate the juice. But to have the ability to ban a battery that connects to an atomizer that connects to a plastic container is outrageous to me! And I find it a tad frustrating the njoy's lawyers didn't pick up on this. It's akin to banning a classic tobacco pipe which has multiple parts that connect to deliver nicotine laced smoke via a plastic casing.
http://www.sunflowerpipes.com/shop/images/medium/pipes/090103_med.jpg - that has parts that connect together to smoke tobacco - it will never be banned. How then can they ban our "pipe" because it has electronic components?

Anyway, those of us vested either on a consumer standpoint or commercially in e-cigs certainly have the right to oppose banning our device in a court of law. And certainly there are enough of us and our voices are loud & passionate.

So why do we have to sit around and "hope" that it tips in NJOY's favor? As my granddaddy said, "Hope isn't a strategy."

It just seems to me that the FDA is being really reckless here and all of their data is speculative at best. Certainly we don't have to lie down and take it if they happen to succeed.

And on top of that, if we had some legal might behind us, we would have more of a hammer to stand up against bans, restrictions, etc when they arise. Reasonable restrictions: banning to minors, ensuring the liquid is what it says, etc. are great.

None of us want to go back to the killer - tobacco. and if e-cigs are taken away or e-juice is regulated to the point it's useless to us - then it's just some federal or state agency putting us back in the tobacco death camp. I for one become furious when thinking about this reckless behavior.

I was thinking perhaps one of the established organizations - say CASAA or ECA could start a legal fund kept in escrow that we could all donate to. Something.

This way if FDA wins, we have the might to file another class action suit against them. Or perhaps we unite together and start our own fund to go at the bans? It's not difficult to set up funds safely that are held in escrow until needed for certain causes.

Don't get me wrong. NJOY & their legal team deserve mad respect for stepping up. But at the same rate - it's their voice - a corporate interest trying to thwart the FDA. It's not our voice - the voice of many. Our story is different than NJOY - and arguably a more compelling voice as we're not financially vested. We have a cause - why can't we fight on legal terms too?

Is this possible, crazy, what? Are there any other organizations working on this?

I hate taking anything laying down...and I have to believe our numbers are mighty if our energies are focused in the right direction and on a single goal...

 

[chrisl317]

It's already been tossed around back and forth on the forum. I don't think we ever really got an answer as to whether or not CASAA could or would do it.

 

[thephoenix]

can you shoot me some of the posts about the topic?

I really seems like something that shouldn't be put on the back burner if it's feasible.

thanks for the reply...

 

[mianker]

I think that this is a great idea and a lot of folks would be willing to contribute.

 

[chrisl317]

can you shoot me some of the posts about the topic?

I really seems like something that shouldn't be put on the back burner if it's feasible.

thanks for the reply...

http://www.e-cigarette-forum.com/fo...-fda-regulation-limits-sales.html#post1536975


http://www.e-cigarette-forum.com/fo...6-class-action-against-fda-health-canada.html

This is just a couple. Do a forum search on class action+FDA, should find a bunch of posts.

Thing is, until there declared illegal, you can't file anything.

 

[davidzx]

Electronic cigarettes have saves thousands of lives from and untimely decease, and I can only speak on behalf of the facts. Those who discredit the facts – can only speak on behalf of a lie.

A lie that can only go as far as a Federal Court Trial, and a lie that was ruled against on January 14 by Federal Judge Richard Leon.

In response to your narrative:

The unfailing maxim of our court system is: The higher up court you go to, the more "political" it becomes, and the less "law abiding" it is.

The FDA had a cognizant argument on the basis of legal terminology in the classification/jurisdiction of the electronic cigarette IN THE FEDERAL DISTRICT COURT IN WASHINGTON. Hence, higher court hearing = less legal weight, and more political bias.

As far as STATE and MUNICIPAL courts - more "first negative impression" coupled with legal terminology = strict disapproval of electronic cigarettes, and widespread ban therewith.

In short, FORGET any emotional life experiences with ecigs, the pure logicality of its safety and effectiveness, and "what you feel is right" NO - In the higher courts, YOU WILL loose if the aforementioned elements constitute your defense and argument.

In the higher courts, you are only correct if you are politically correct. In the case for electronic cigarettes, Honor Richard Leon in FDA vs Smoking Everywhere set the precedent and the first political footprint - the eCig is an impressive revenue source, taxable potential, and more or less of a political "give the people what they want, and they will love you for it -- screw all else"

BOTTOM LINE, if the Federal District Court ruled in favor of an eCig retailer over the FDA - that means that the higher the FDA appeals, the more embarrassment they will sign up for and a complete waste of their tireless efforts to foster tobacco harm fatalities. In Local and Municipal courts - THE FDA WINS!!!!! In Higher District Appellate courts and those in the vicinity of the Supreme Court --- "WE THE PEOPLE, will eradicate them with outnumbered voices, and the "political" orientated Judges therewith together with the people - scream his last voice with a ruling for the people, and the Judge's hammer going down on the FDA"

It makes prudent sense.

In regards to your organization sponsoring the sustainability of the eCig -- scream of their true duplicity in smaller courts, debunk them and be politically correct in the higher courts. Since the FDA doesn't want to downsize its case, its a matter of being politically correct and in that scenario "Show the Judge WE THE PEOPLE care, and YOU THE PEOPLE will get.

For more info, visit my blog at thequitblog . com

 

[yvilla]

Xenite, this is a common misunderstanding, but not accurate at all. The FDA is calling the ecig a new "drug" or "drug device combination" in the pharmaceutical sense - that of needing to go through the lengthy and expensive process of application for FDA approval, as fully laid out in the FD&C Act, as a new pharmaceutical product before being marketed. See:
FD&C Act Chapter V: Drugs and Devices

This has nothing to do with drugs that are illicit in the criminal sense - that is, controlled substances and drug paraphernalia. Nicotine is not a controlled substance.

 

[the vaporizer]

how are nicotine and alcohol not controlled substances?!?!?


Political or not, we the people must stand up for what we believe to be right and even if it doesnt work...at least we tried! I would be willing to put in time and effort if the situation arose!!!! Thanks for the interesting to[pic OP!!! and thanks to all the other posters for their intellectually stimulating responses!

 

[yvilla]

how are nicotine and alcohol not controlled substances?!?!?

The term "controlled substance" is a legal term, and "controlled substances" are those specifically listed in federal law:
United States Code: Title 21,812. Schedules of controlled substances | LII / Legal Information Institute
http://www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf

That should not be confused with the fact that all pharmaceutical drugs and other things like alcohol and tobacco products are regulated, because they certainly are, but not as "controlled substances".

 

[Klasy]

Under the Federal Drug Paraphernalia Statute, which is part of the Controlled Substances Act, it is illegal to possess, sell, transport, import, or export drug paraphernalia as defined.

Wonder how the smoke shops can still sell bongs then? The place I used to buy cigs sold a metal thing called a one hitter also (as if those are used for regular tobacco)

And I know it's Canada and not the US but last I knew pot was legal there in a small amount, yet they also tried to ban ecigs?

I really do love the US but the laws and government are so screwed up it's unreal. The other night reading threads made me think of the movie Demolition Man where everything that "THEY" decided is bad for you is illegal.

Sorry for getting off topic I think it's a great idea just not sure if you can find any big dogs to help fight the battle

 

[DarthVapr]

Hey, all.

I am wondering if anyone out there has the legal chops to answer this...

Let's say worst case scenario that the NJOY case leans toward favoring the FDA in September and the ban stays in place.

None of us want to go back to the killer - tobacco. and if e-cigs are taken away or e-juice is regulated to the point it's useless to us - then it's just some federal or state agency putting us back in the tobacco death camp.

The bottom line is that, as many vaping modders have proven, if we have to, we can go to Radio Shack, get the parts, and make our own personal vaporizers. I think that includes the atomizers, too (we may need to work on that). And we can easily make our own eJuice. They can make it harder, but they can't stop us from our healthier choice, because we won't allow it.

They will eventually lose, because we are fighting for our lives, and the lives of those we love. All they are fighting for is greed and power.

A couple of hundred years ago some Patriots in Boston threw British tea into the harbor. I think a few of us, in cities across America, should schedule a "tobacco party," and toss some tobacco into whatever body of water is nearby, and make sure the local media is well informed ahead of time. And everybody should have a well stocked press kit ready to hand out.

----------------------

Vape Free or Die!
V is for Vapor!

 

[thephoenix]

Thanks for the post Darth...

I happen to agree with you - it's a fight...

i've never felt more impassioned about a certain political issue in my life...

p.s. props to you for the greatest username ever...

 

[mwa102464]

Pretty amazing they are slowly legalizing ......... but trying to stop vaping isn't it guys, its all about the Ole mighty dollar and how they can tax it to get there share. I hate it I really do what our govt has turned into, they are all crooks and my feeling is that the American people should say the next politician or Judge that gets caught doing anything on the take or illegal gets there balls chopped off.!!!

 

[DarthVapr]

Thanks for the post Darth...

I happen to agree with you - it's a fight...

i've never felt more impassioned about a certain political issue in my life...

p.s. props to you for the greatest username ever...

Thanks for the kind words. I get pretty worked up too. But then, I have been an activist writer since before Watergate. My last major research paper was published back in the early 90s, and was an expose of the little-known business and political relationships between US corporations and certain government agencies with the Nazis, before, during and after WWII. Just Google "Shadow of the Swastika" by R. William Davis. So I'm not the least shocked about this deception that threatens to kill millions of would-be non-smokers, and their loved ones, over the next several decades.

I am shocked that the FDA spokeswoman, Rita Chappelle, would make the following statement, reprinted in Reason Magazine:

"We're concerned about the potential for addiction to and abuse of these products," said FDA spokeswoman Rita Chappelle. "Some people may mistakenly perceive these products to be safer alternatives to conventional tobacco use."​

She was either told to say that or she's dumber than a bag of snails. And below I'll repost my reply to an article I came across in the "Salt Lake City Weekly" website, "Put Out Those Electronic Cigarettes." It was your typical FDA propaganda hit piece. I can't post links yet, but if you Google the title, I'm sure you can find it.

-----------------------------------

For the many ex-smokers who have taken up the personal electronic vaporizer, and no longer smoke cigarettes at all, the claim that it is not a smoking cessation tool is a joke. If you cease to smoke (and there is no smoke involved with the vaporizers - it's water vapor) then you have quit smoking. Period. And you gain all the benefits of quitting.

The FDA is attempting to scare everyone and protect the profits of the tobacco and pharmaceutical companies, and the exorbitant tax revenue of federal and state government agencies that depend on keeping people in the established markets - tobacco, which kills almost a half-million Americans every year, and pharmaceutical, which profits from the nicotine replacement therapy products like the gum and patches, which the FDA approves despite their 95% failure rate.

Many doctors have come forward with the accurate fact that the electronic cigarette will save millions of lives. Dr. Michael Siegel of Boston University, Dr. Joel Nitzkin of the AAPHP Tobacco Control Task Force, Dr Brad Rodu of the University of Louisville, Dr David Baron Chief of Staff at the Santa Monica-UCLA Medical Center, and Dr Richard Wender, former president of the American Cancer Society, to name just a few.
Americans have every right to make the healthier choice to use the electronic cigarette as a safer alternative to smoking, and anyone who thinks that they can stop us better remember the Boston Tea Party, a couple of hundred years ago. We are healthier non-smokers, and we aren't going back for anyone.

The science is on our side and we know it. So do the "public health groups" who would like to take this choice away from us. You will fail, and be forever known as the liars or idiots you are.

-------------------------------------------

The FDA may think they are living "The Empire Strikes Back," but they should remember that, in the end, the Rebellion succeeds. That's because they were fighting for their lives, and the Empire was only fighting for power and greed. Life triumphs.

Vape Free or Die.
V is for Vapor

 

[DarthVapr]

Wonder how the smoke shops can still sell bongs then?
---snip---
The other night reading threads made me think of the movie Demolition Man where everything that "THEY" decided is bad for you is illegal.

Sorry for getting off topic I think it's a great idea just not sure if you can find any big dogs to help fight the battle

Klasy, there's a really great shop here in Louisville that sells every kind of "hitter" you can think of. And it's perfectly legal because they include tobacco with every purchase.

And I love the movie Demolition Man, but I'm still trying to figure out how the "three shells" worked.

And "big dogs" are good to have, (and we do have some really big ones), but I learned from working on the Mississippi Queen down around Nachez, Mississippi, that several medium sized dogs can run a deckhand up a tree just as quick as a couple of big ones. Every day we spread the virtues of vaping we add many dogs to our pack. And soon, when the moon is full and the FDA thinks it has the pack under control, we will howl like the Hounds of the Baskervilles, and they will fear us.

Vape Free or Die
V is for Vapor

 

[DarthVapr]

Pretty amazing they are slowly legalizing ......... but trying to stop vaping isn't it guys, its all about the Ole mighty dollar and how they can tax it to get there share. I hate it I really do what our govt has turned into, they are all crooks and my feeling is that the American people should say the next politician or Judge that gets caught doing anything on the take or illegal gets there balls chopped off.!!!

It's not all that surprising when you consider that the prohibition of the herb was at a time when it first threatened the established big corporate profits of the time, just like the electronic cigarettes do today. It was the industrial use that they were actually after, not so much the medicinal, or recreational.

And the propaganda that they used to protect the petrochemical, wood paper, synthetic fiber profits, as well as the methods and agencies of the government used, are pretty much the same as they use now against the electronic cigarettes.

The herb prohibitionists are losing their audience only after more than 70 years of propaganda that is directly responsible for the concentration of the wealth into fewer hands, the tragic fouling of our environment (case in point the current Gulf oil underwater gusher), and the subsequent poverty, disease and misery that naturally followed the elimination of competition from a much safer, more economical, and healthier choice of raw materials from which our entire civilization could have benefited greatly.

The old prohibition is failing because a lot of dedicated people researched and published the truth about the plant and the industry that was sabotaged in the mid-1930s. But they got away with the lies and the corruption for over 70 years, and still counting.

And there are corporate and government interests which are trying to do exactly the same thing to the personal vaporizer industry. The reasons are no different than the last time. Protect their profits, increase their power over the lives of all of us and, if they succeed, we will greatly suffer. And many of us will die.

We cannot let them succeed again. Educate the media. Educate the legislators. Educate the voters. We have the science on our side but that alone is not enough. We must all know in our hearts that we are fighting for our lives, and the lives of all the others who will benefit from the truth about vaping, and how it is 99% safer than smoking.

Support the groups that are out there, every day, fighting the propaganda. This Forum is one of the most important resources we have to organize, educate, and activate the people, all of whom stand to gain from the acceptance of the personal vaporizer industry, one way or another.

-------------

Vape Free or Die
V is for Vapor

 

[Danyulc]

You are so dead on accurate that it is a little scary DarthVapr. Can't you just phantom choke all these people to death? PLEASE!

-Danyulc

 

[DarthVapr]

You are so dead on accurate that it is a little scary DarthVapr. Can't you just phantom choke all these people to death? PLEASE!

-Danyulc

Of course not. Then the movie would be over too soon and people would want their money back. Besides, the best action and special effects are always saved to the end. The fans expect it.

Seriously, though, it's all so clear what's going on. We must expose the truth to save millions of lives. It's as simple as that. Future generations of Americans, and others, will literally live or die, depending on how well we take the message of vaping over smoking to the people.

Prepare.

------------------

Vape Free or Die!
V is for Vapor!

 

[chrisl317]

This has got to be at least the 4 thread about a class-action suit against the FDA I've read in the last year. It's already been determined here in the forum, that e-cigs must first be banned/illegal and showing clear harm will be the result of the illegal classification. Until then, you can't file a suit. Do some research first through the search function of the forum, noobies. It might have already been discussed ad nauseum.

 

[thephoenix]

Do some research first through the search function of the forum, noobies. It might have already been discussed ad nauseum.

seriously, dude? not cool.

we're free to post & discuss what we like...

it's not causing anyone harm if we discuss something that's all ready popped up...even if we're "noobies" as you put it...

besides - DarthVpr has added some really valuable and important thoughts onto the idea...so I'm glad we started this thread...