Comments Please on AAPHP Petitions to FDA

[(So) Jersey Girl]

I've read every post here. I wish the tone of this thread had been a little more respectful of opposing views.

I hope this works out. I have grave doubts though. It seems a no win- no win situation no matter what is decided. I just hope this doesn't come back to haunt us.

I understand what you're saying. I don't necessarily agree the tone has been disrespectful. What I see is people who are passionate in their defense of e-cigarettes taking different positions on the subject of government regulation. Sometimes passions flair and get people get a little testy when the other side doesn't seem to understand their position.

I believe that in an ideal world the government would just leave us alone to enjoy our new hobby with no interference. We don't live in an ideal world. The best solution right now is to have e-cigs classified as a tobacco product, keep them available and work to have them placed into an as yet undefined reduced harm category.

I can't worry about taxes. The government seems to find a way to tax whatever they want for whatever reason. We had a revolution over this very issue. Seems like the lessons of history are lost on those who need to learn them the most.

 

[Mr_Phil]

Actually there are three things you can do IRT this specific situation. And you can do two of the three things w/o losing your self respect.

First. Assert yourself as an independent minded American citizen that is not going to allow the fed to regulate your life without at least protesting loud and often. Think of every other "lifestyle" or "choice" issue. The fight is long and dreary. But, in the end you can look yourself in the mirror.

Second and Third are the Issue options. Step one is to Face reality. At this moment in time there are two approaches. Pick the one closest to what you can live with. Fight for it. Once you win, you will be in a place where you can refine the goal and begin a new campaign.

 

[JLeigh]

It will be in the government's hands either way. It's down to a matter of HOW it will be regulated - as a drug or as a tobacco product.

If it's regulated as a drug, it'll go to the black market, but we will have no chance for the ecig advocacy groups to lobby how it's regulated. If it's a tobacco product, WE can be lobbiests on our behalf.

If this has already been touched on, I apologize. I've tried to keep up with this thread, but it's very long now. What is bothering me about this approach is the PACT act. Unless I'm reading things wrong, if ecigs are to be classified as a tobacco product, then it's still back to the black market because the PACT act makes tobacco products non-mailable. Ecigs and liquids are nearly all mail-order. I have no doubt that the PACT act will be signed into law.

If I am missing something, someone please correct me.

 

[(So) Jersey Girl]

If this has already been touched on, I apologize. I've tried to keep up with this thread, but it's very long now. What is bothering me about this approach is the PACT act. Unless I'm reading things wrong, if ecigs are to be classified as a tobacco product, then it's still back to the black market because the PACT act makes tobacco products non-mailable. Ecigs and liquids are nearly all mail-order. I have no doubt that the PACT act will be signed into law.

If I am missing something, someone please correct me.

Well, the PACT act isn't law yet. It still has to get through the House. I plan on writing to my rep. to vote against it.

I'm not sure how this would impact us. I can't believe US government is seriously considering restricting the delivery of ANYTHING through the mail, considering the desperate state the post office is in.

 

[yvilla]

What is bothering me about this approach is the PACT act. Unless I'm reading things wrong, if ecigs are to be classified as a tobacco product, then it's still back to the black market because the PACT act makes tobacco products non-mailable.

Not only did the PACT Act specifcally target cigarettes (and not "tobacco products" in general), but it seems to have hit a wall in any event, according to the NY Times:

"As recently as December, a ban on mail-order cigarettes called the PACT Act — for Prevent All Cigarette Trafficking — looked all but certain to become law. After the Senate Judiciary Committee approved the House measure, Senator Harry Reid of Nevada, the majority leader, prepared the bill for passage on the floor. No senator has publicly opposed the legislation.

But at the last minute, two or three Democratic senators told party leaders privately that they might block the bill, according to senior Senate Democratic aides. They spoke on the condition of anonymity because they were not authorized to speak publicly.

The Senecas and their lobbyists said they did not know who their Senate protectors were. Records of the tribe’s campaign contributions offered few clues; the only significant donation was a $15,000 check to the Republican Senatorial Campaign Committee.

The Senecas’ apparent victory — at least for now — is a comeback of sorts. Five years ago, the Indian nation lost much of its business when Eliot Spitzer, then attorney general of New York, pressured private carriers like FedEx and UPS to stop delivering cigarettes in the interest of keeping them away from children. That forced the Senecas to rely on the United States Postal Service, which declined to join the ban. The tribe’s sales fell to about 12 million cartons a year from a peak of about 30 million cartons in 2004, according to the New York State Department of Taxation and Finance."

Senecas See Comeback Over Sale of Cigarettes - NYTimes.com

 

[maxx]

U.S. Senate Votes to End Tobacco Sales Through the Mail

BUFFALO, NY - In a unanimous vote Thursday night, the U.S. Senate voted to end tobacco sales through the mail.

The legislation, known as the PACT (Prevent All Cigarette Trafficking) Act, now goes on to President Obama. The House of Representatives passed its version of the bill last spring.

Still want to be a tobacco product?

Just sayin'.......

 

[maxx]

Some provisions of PACT

1. Require Internet sellers to pay all federal, state, local or Tribal tobacco taxes and affix tax stamps before delivery to any customer;

2. Mandate that the age and identification of purchasers be checked at purchase and at delivery;

3. Require Internet vendors to comply with state and local laws as if they were located in the same state as their customers;

4. Provide federal and state enforcement officials with new tools to block delivery of cigarettes and smokeless tobacco products that evade federal or state laws; and

5. Ban the delivery of tobacco products through the U.S. mail.

North Country Gazette PACT Curtails Internet Tobacco Sales, Mail Delivery

 

[yvilla]

Okay, the NY Times prediction that the PACT Act was stopped proved not to be accurate.

However, just as with the taxing provisions the PACT Act is designed to aid the enforcement of, the PACT Act itself specifically describes the products it applies to - and that is NOT some generic thing called a "tobacco product", no mattter how many times some ill-informed publication, like the North Country Gazette you linked to, uses that term as a shorthand term of convenience!

The PACT Act as just passed applies to two SPECIFIC products - "cigarettes", and "smokeless tobacco", NEITHER of which ecigs meet the definition of, no matter what they are classified as. Here are the definitions, as contained in the PACT Act itself:

‘‘(12) SMOKELESS TOBACCO.—The term
‘smokeless tobacco’ means any finely cut, ground,
powdered, or leaf tobacco, or other product con
taining tobacco, that is intended to be placed in the
oral or nasal cavity or otherwise consumed without
being combusted."

‘‘(A) IN GENERAL.—The term ‘cigarette’—
‘‘(i) has the meaning given that term
in section 2341 of title 18, United States
Code; and

‘‘(ii) includes roll-your-own tobacco
(as defined in section 5702 of the Internal
Revenue Code of 1986).

Here is the actual text of the PACT Act as just passed: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s1147es.txt.pdf

"(1) the term “cigarette” means—
(A) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and
(B) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subparagraph (A);"

http://www.law.cornell.edu/uscode/18/usc_sec_18_00002341----000-.html

To be perfectly clear, just as the PACT Act is written to apply to specific products, so do the existing tax codes. Ecigs do NOT meet the defintions of any of the currently taxed "tobacco products". If the government wants to tax them it certainly can, whether called "tobacco products" or not, but it WILL have to first pass taxation laws specifically targeted at ecigs before it can do so.

 

[Unperson]

Some provisions of PACT...{insert governmental appendage in whichever orifice is currently unoccupied}

I've made a few posts in this thread. I don't think any of what I wrote was taken seriously or seriously taken.

Let me give everyone a piece of advice that will serve you no matter which side of the fence your on. Buy a large quantity of e-liquid, as many spare batteries and attys as you can comfortably afford, and store them in a cool, dry, dark area of your house.

Hell, if you need a link, I can give you one to a site that sells e-liquid in bulk. 1.2 KG (1070ml or 1.13 qt) e-Liquid for $65.00. Broken down, 1070ml is over 35 30ml bottles ($1.82 per bottle). That's a LOT of E-J.

Note: Edited to correct misspelling

 

[Unperson]

‘‘(12) SMOKELESS TOBACCO.—The term
‘smokeless tobacco’ means any finely cut, ground,
powdered, or leaf tobacco, or other product con
taining tobacco, that is intended to be placed in the oral or nasal cavity or otherwise consumed without being combusted."

You realize the highlighted part is fertile ground for anti-e-cig lobbyists to use as ammo against us, right?

 

[maxx]

Way ahead of you Unperson. I have been stockpiling since I heard about this petition. I got one order today, have two more orders in the pipeline. Also stockpiling DIY materials and learning the trade. Good information and friendly folks in the DIY e-liquid forum if you want to check it out. Glad I have been saving old cartos and empty bottles. It's bootlegging time.....

 

[yvilla]

You realize the highlighted part is fertile ground for anti-e-cig lobbyists to use as ammo against us, right?

You cannot read a statutory provision that way, sorry. The definition read as a whole requires that the product BE or CONTAIN tobacco. Eliquid is DERIVED from tobacco (which is what allows it to be considered a "tobacco product" in the first place given the legislation passed last June), but it is NOT nor does it CONTAIN tobacco.

 

[Unperson]

You cannot read a statutory provision that way, sorry. The definition read as a whole requires that the product BE or CONTAIN tobacco. Eliquid is DERIVED from tobacco (which is what allows it to be considered a "tobacco product" in the first place given the legislation passed last June), but it is NOT nor does it CONTAIN tobacco.

RIGHT! ...and the purpose of this thread is to petition the FDA to group e-cigs in with every other "tobacco product". Hello.. ..is this thing on? Anybody? Anybody? Bueller? Bueller?

I'm with you on the logic that e-cigs are NOT tobacco products. This thread is trying to change that.

You know what I feel like? I'm looking down at both my feet. Tattooed on the top of the left one is BT. On the right one.. ..BP. Now someone is handing me a gun and telling me to shoot at one of them.

 

[DC2]

Way ahead of you Unperson. I have been stockpiling since I heard about this petition. I got one order today, have two more orders in the pipeline. Also stockpiling DIY materials and learning the trade. Good information and friendly folks in the DIY e-liquid forum if you want to check it out. Glad I have been saving old cartos and empty bottles. It's bootlegging time.....

You have to be kidding me, I'm already done stocking up.

I have 50 atomizers, 50 batteries, and two years worth of juice. But my stocking up had nothing to do with the freaking petition, and everything to do with what the petition is fighting.

You want a REAL reason to stock up?
If the goal of this petition fails you got it.

 

[yvilla]

I'm with you on the logic that e-cigs are NOT tobacco products. This thread is trying to change that.

Nope. You are absolutely wrong on my stand in this. Eliquid, as I mentioned above, is DERIVED from tobacco, so therefore IS a "tobacco product" under the law as currently written. Have you not read the defintion of "tobacco product" in the new tobacco legislation passed last June? Here it is:

(1) The term ‘tobacco product’ means any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product).

(2) The term ‘tobacco product’ does not mean an article that is a drug under [21 U.S.C. § 321](g)(1), a device under [21 U.S.C. § 321](h), or a combination product described in [21 U.S.C. § 353](g).

(3) The products described in paragraph (2) shall be subject to chapter V of this Act.

FSPTCA Sec. 101(a)

http://frwebgate.access.gpo.gov/cgi...=111_cong_public_laws&docid=f:publ031.111.pdf

In fact, I was one of the very few people arguing that ecigs were more properly considered merely alternatives to cigarettes (that is, tobacco products, albeit harm-reducing) rather than a "new drug" product needing to obtain pre-market approval from the FDA - a year ago and more, even before my position was vindicated (in a sense) by the US Congress when it passed the above legislation with its definition of "tobacco product" that DOES include ecig eliquid. Here was my reasoning as of April of 2009, before the SE and Njoy lawsuit, before the new law was passed:

http://www.e-cigarette-forum.com/fo...400-retracting-my-support-eca.html#post205475

And here was my reasoning in August of 2009, after the new tobacco legislation but before Judge Leon ruled:

http://www.e-cigarette-forum.com/fo...posts-cleared-periodically-78.html#post520474

So now the FDA STILL refuses to consider ecigs as a "tobacco product", despite the language of the FSTPCA, and despite Judge Leon's ruling in the currently pending litigation that agrees with me p), and is determined to press its position that ecigs are unapproved "new drug devices" that are illegal to be imported into or sold in the US. Have you not read the FDA letters and press releases proclaiming ecigs to be illegal to be sold because they are "unapproved" new drug devices? Going back to more than a year ago now? Have you not read the FDA briefs in the court case, making its position on this and its intent perfectly clear?

Why on earth wouldn't I support an incredibly well done citizen's petition prepared and submitted, only after hours and hours of very hard work, by one of the very few public health physicians that we can count on as our friend and supporter in our battle against the FDA's longstanding war on ecigs? I'd have to be crazy!

 

[ChipCurtis]

What keeps getting overlooked in this discussion is that it is already in the government's hands and has been from the moment the FDA got involved and declared e-cigs to be drug delivery devices.

This does not, however, translate into "they are already classified as drug-delivery devices". They are currently in limbo and non-classified, and only await various legal maneuvers for final classification.

The only reason some of us see it as "already under FDA control" is because of the FDA's political and financial arm-twisting strength to buttress their position that "it ought to be a drug-delivery device".

 

[JLeigh]

I appreciate all the responses. They were very helpful! Trying to wrap my mind around all this legal jargon was like trying to push a watermelon through the eye of a needle.

 

[basic_atheist]

RIGHT! ...and the purpose of this thread is to petition the FDA to group e-cigs in with every other "tobacco product". Hello.. ..is this thing on? Anybody? Anybody? Bueller? Bueller?

I'm with you on the logic that e-cigs are NOT tobacco products. This thread is trying to change that.

You know what I feel like? I'm looking down at both my feet. Tattooed on the top of the left one is BT. On the right one.. ..BP. Now someone is handing me a gun and telling me to shoot at one of them.

LOL

ooo, ow-ow - ooo, ow-ow... Chika-ka-kaaa

I know the feeling. But it seems to me we can only do the following..

1) sit here and complain about it all day causing an unproductive outcome
2) join the paddy wagon to help keep e-cigs legal sooner rather than later, thus ensuring a free open market (nevermind the pain in the ... regulations)
3) throw your hands up, scream "I don't care", and crawl back under our rocks
4) there is no 4, go back to 1

Sure, I would love to fix it right the first time. But after reality kicks in, you soon figure out we don't have much of a choice... unless we have volunteers to build a militia and storm the big house. Anybody feel like dying early? I'd rather let the nicotine do it slowly. How about you?

 

[(So) Jersey Girl]

This does not, however, translate into "they are already classified as drug-delivery devices". They are currently in limbo and non-classified, and only await various legal maneuvers for final classification.

The only reason some of us see it as "already under FDA control" is because of the FDA's political and financial arm-twisting strength to buttress their position that "it ought to be a drug-delivery device".

I don't see this as being any of the FDA's business. Nicotine is not an illegal drug nor is it a new drug. If I can legally obtain nicotine by smoking I should have the option to alternative delivery methods without government interference. That being said, the government and the FDA don't give a hoot what I think. The FDA claimed jurisdiction and now the issue will be settled by the courts. Either way, it ends up in the FDA's lap.

 

[CES]

just thinking....we're posting on this issue because we have a huge stake in the outcome, and it's clear that many are reading and researching and we still can't reach a consensus/ shared understanding on the choices, how the different threads interact and should be interpreted and what outcome we want. How on earth is anyone who's life isn't going to be directly affected by the outcome going to follow, let alone care what happens to e-cigs? they'll go by what the FDA and newsies say, and not bother to dig deeper. so even if you think the petition for tobacco product classification is the wrong direction- please consider the petition asking the FDA to communicate the results of the testing without misrepresentation.