Connecticut bill (HB 5286) would require labels covering 60% of e-cig packages listing contents & nicotine yield, hearing Feb 28

[graffiti]

I spend an hour writing a letter to my reps (Alberts and Guglielmo) last night, highlighting the fact that these stringent laws will hurt small businesses in CT and how strange it seems that the rules would not apply to tobacco, a product that is 100% deadly.

In the past they both have been very responsive to my concerns. Hopefully this is the same way.

I'm also in the process of writing an editorial I'm going to submit to the Courant and the Bulletin.

Let's do this, people!

EDIT:

As worded, it appears to me that they have Vape Shops specifically in mind, and not necessarily the prepackaged (Blu, njoy) kits that are sold in quickie stores, tobacco shops etc. It would put a huge burden on the vape shops who buy wholesale, and mix juices in house.

It's actually worse than that. To wit:

Such label shall be located on the front of the package containing an electronic nicotine delivery system underneath any cellophane or other clear wrapping.

They are trying to force manufacturers to do this. And that will never happen. It will just drive vendors out-of-state.

 

[ut1205]

It's obvious that they want a total ban without appearing that way. Hey, it's just some packaging requirements. I would like to say "Blue State" but it's coming to all states. Get ready to "Bootleg".

 

[graffiti]

It's obvious that they want a total ban without appearing that way. Hey, it's just some packaging requirements. I would like to say "Blue State" but it's coming to all states. Get ready to "Bootleg".

Let's not bring blue vs red into the argument. It's counterproductive at best.

All one needs to do is follow the money. Whose financial interests are going to be positively effected if this ban goes into effect? That's right, tobacco companies.

Instead of red versus blue, let's make it vapers versus tobacco companies. David versus Goliath.

 

[Botomline]

Realize they've crafted a bill which makes it impossible the e-cig market to satisfy.

"(b) (1) No person shall manufacture, package, sell, offer to sell, distribute, or import for sale or distribution within the state any electronic nicotine delivery system, the package of which fails to bear a label stating the contents and nicotine yield of such electronic nicotine delivery system."

Only makers of those types suitable for sale in 7-11 or walmart even have a chance to meet this standard due to the variations in the delivery of the vapor in different devices. Even variances in PG/VG would technically make this an impossible standard. And the testing required to even label the packaging for this component would put all but the most standardized vendors with few selections out of the market.

 

[ut1205]

Let's not bring blue vs red into the argument. It's counterproductive at best.

All one needs to do is follow the money. Whose financial interests are going to be positively effected if this ban goes into effect? That's right, tobacco companies.

Instead of red versus blue, let's make it vapers versus tobacco companies. David versus Goliath.

I was in no way trying to bring politics into this discussion, but as you read more of this type of post you will find that blue state politicians, from congress to the local levels, are by far the ones causing us the most trouble. That's just the way it is.

If you look at the "Urgent Calls for Action" at the top of this page all but two are Blue States. UT and TN (my state). The TN Bill is very "pro vaping".

 

[Bill Godshall]

Plume wrote:

BUMP. This is a serious Bill. If they ban sale of e-cigs without manufacturer labeling, ALL cig-alikes will be banned in CT except the name-brand e-cigs, such as the ones owned and sold by Big Tobacco. This is one of the most destructive bills I've ever read & this needs immediate attention from the entire ECF community! Tell me you guys are taking this seriously!!

Plume is correct this bill poses a huge threat (if enacted), as it would BAN the sale (and manufacturing/importing/packaging) of ALL e-cigs in Connecticut (except for several small e-cig companies that choose to comply, which would most likely be manufacturers and importers located in Connecticut).

Same thing with ALL other state bills (e.g. Utah and Illinois) to regulate e-cig manufacturing, importing, packaging and/or labeling.

Currently, the only state requiring labels on e-cigs is California, where confused and scared voters approved a really stupid Proposition requiring fear mongering warning labels on most consumer products sold in the state (and because then AG Jerry Brown sued NJOY and SE in 2009, and their settlement included an agreement to include those stupid CA warning labels).

But Plume is dead wrong to suggest the Connecticut bill would benefit Big Tobacco, or is supported by Big Tobacco.

Rather, the Big Tobacco companies will be most likely to sue states that enact e-cig manufacturing, packaging and/or labeling laws.

There's a long history of tobacco warning label battles, which prompted Big Tobacco to successfully lobby Congress to enact the Federal Cigarette Labeling Act in 1965 (which was subsequently amended in 1969 to ban cigarette advertising on the airwaves), which preempted ALL state and local governments from enacting their own cigarette labeling laws.

The problems with state laws that regulate the manufacturing, packaging and/or labeling of e-cigs include:

- the bills are sponsored by prohibitionists who want to ban the sale and manufacturing of all (or virtually all) e-cig products,

- the bills are also intended to demonize e-cigs, and to confuse and scare the public,

- different and contradictory regs in different states will sharply increase product prices, as products will need to made "state specific",

- the entire purpose of these bills is to demonize e-cigs, discourage use of e-cigs, drive up costs, and ban as many products as possible.

 

[Plumes.91]

Mr. Godshall knows what he is talking about. It was my first thought that this would benefit US based tobacco companies, since I could see them being the only companies that would be able to afford printing labels for, and cellophaning their NjoyKings and Mystic brand e-cigs.

But Mr. Godshall brings up a good point, that this is not only burdomsome to ALL e-cig distributors & manufacturers, but I believe it may also be able to be considered as "unconstitutional" in that it attempts to control free speech. I can see it going either way. If Njoy & Mystic want to sell their e-cigarettes in the cigarette isle of every walmart within CT, I would guess that they would comply... But this would kill off EVERY unbranded e-cigarette kit sold in small brick & mortar vape shops. Not good for the small guys selling 510 kits! Not good for the guys selling eGos or mods, which will never come with a pre-made nicotine stamp! This is just another added expense for the little guy & I do hope to see BT join us & irradicate this bill!!!

Not a good bill at all. To Classwife & the other moderators, I was only symbolically hash-tagging your names, since I believe this Bill is a serious one that deserves attention from the ECF administration & mod team. Whether or not it deserves a yellow call to action headline is your choice, admins! This seems to be a serious bill. I'll have to read up on the others that are in the yellow headline ASAP..

 

[sonicdsl]

<...>

Not a good bill at all. To Classwife & the other moderators, I was only symbolically hash-tagging your names, since I believe this Bill is a serious one that deserves attention from the ECF administration & mod team. Whether or not it deserves a yellow call to action headline is your choice, admins! This seems to be a serious bill. I'll have to read up on the others that are in the yellow headline ASAP..

Note that the banners point to CASAA Calls to Action. There doesn't appear to be one for this particular bill. You should check with CASAA about your concerns on this one.

 

[afrazier5]

The Tobacco Control Act states:
“No State or political subdivision of a State may establish or continue in effect with respect to a tobacco product any requirement which is different from, or in addition to, any requirement under the provisions of this subchapter relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products ”


21 U.S.C § 387p(a)(2)(A) (2013)
see also 21 U.S.C § 387g(a)(4)(B)(i) (2013) .


I know we don't like to refer to ourselves as a tobacco product but we are governed under the Tobacco Control Act despite the fact the FDA hasn't taken any measurable steps at this time. Maybe you can quote this in your responses and educate them that any attempt to regulate the labeling will be a violation of federal laws thus illegal and unenforceable.

 

[Roger_Lafayette]

The Tobacco Control Act states:<snip>

I'm confused Aaron. It's a general principle in Supremacy cases (which is what this statute basically says) that if the Feds haven't acted, the states can. In other words there can be no conflict or augmentation to what doesn't presently exist. Am I missing your point?

 

[Plumes.91]

States can make laws that break federal precedent. It becomes the federal government's responsibility to do something about it. If a state's federal representatives support the law, then other state's would need to challenge the law, right?

 

[Roger_Lafayette]

States can make laws that break federal precedent. It becomes the federal government's responsibility to do something about it. If a state's federal representatives support the law, then other state's would need to challenge the law, right?

That's not my understanding. I believe that any private party suffering actual injury may seek relief. Even potential injury is enough - if the standards for an injunction are met. I believe the history of fed'l pre-emption cases is full of private parties (usually businesses) being allowed through the proverbial courthouse door.

Doesn't nec'ly mean they win. But they do have standing to sue even if they aren't the Feds.

 

[afrazier5]

Roger - here's my understanding that I've also received from some very powerful sources:

The Tobacco Control Act preempts any state or local requirement that is “different from or in addition to” Federal requirements relating to “good manufacturing standards” (which would include labeling) or “tobacco product standards,” which include “the construction, components, ingredients, additives, constituents, including smoke constituents, and properties of the tobacco product.” The Food and Drug Administration (“FDA”) is moving to regulate all products made or derived from tobacco, including e‐cigarettes. As such, any quality control or manufacturing standard for e‐cigarettes established by any state would constitute a “manufacturing standard” and a “tobacco product standard” and thus be preempted.

 

[Roger_Lafayette]

Roger - here's my understanding that I've also received from some very powerful sources:

No argument there ... my point was that until the Feds act, the states can do as they please w/o running into that provision or any general preemption barriar. There might be some minor purchase to be obtained by suggesting to state legislators that anything they pass this year will become ripe for challenge at some time in the future.

It's not clear that such pleas will be gladly entertained by our BFF Rep. Ray, or many of his ilk.

 

[Drozd]

One could argue that feds have acted though...in the enjoy vs FDA case...
Judge Leon ruled that ecigs fell under a recreation tobacco classification...
So a federal judge placed then firmly under the purview of the tobacco control act..

So a state would be overstepping fed...

 

[Bramble]

Roger - here's my understanding that I've also received from some very powerful sources:

The Tobacco Control Act preempts any state or local requirement that is “different from or in addition to” Federal requirements relating to “good manufacturing standards” (which would include labeling) or “tobacco product standards,” which include “the construction, components, ingredients, additives, constituents, including smoke constituents, and properties of the tobacco product.” The Food and Drug Administration (“FDA”) is moving to regulate all products made or derived from tobacco, including e‐cigarettes. As such, any quality control or manufacturing standard for e‐cigarettes established by any state would constitute a “manufacturing standard” and a “tobacco product standard” and thus be preempted.

Is this not exactly how they effectively banned Flavored Malt Beverages from being sold in Utah?

 

[Roger_Lafayette]

One could argue that feds have acted though...in the enjoy vs FDA case...
Judge Leon ruled that ecigs fell under a recreation tobacco classification...
So a federal judge placed then firmly under the purview of the tobacco control act..

So a state would be overstepping fed...

Uh, I'm not sure what you're saying, or how we disagree.

You are saying that FDA has two types of regulation - one of which is for therapies, correct? And we agree that they used that regulatory authority, arguing that they could ban the importation of vaping devices as illegal therapies (AKA "drug delivery devices"). C.f. http://rodutobaccotruth.blogspot.com/2010/01/federal-judge-to-fda-e-cigarettes-are.html But of course the problem is that (as you say) PVs were deemed by the judge not to be (therapeutic) drug delivery devices.

And you're also saying that the FDA still has authority to regulate "tobacco products" - just as it can regulate analogs, etc., right? (Analogs aren't therapies either.) And we agree that it just hasn't used that second type of authority yet, right? (I believe that's what everyone's waiting for.)

So if we agree on all of that, how exactly are states overstepping their bounds, by doing something which is inconsistent with nothing? It's impossible for state regulations to conflict with a vacuum. I suppose the FDA could simply announce that as part of its regulatory authority over non-therapeutic tobacco products, it believes that vaping s/b entirely unregulated (fat chance). But they haven't even done that.

There is no way that I can ever contradict a sphinx. No matter what I say. Because the sphinx has said ... precisely nothing

P.S.: Okay one more idea. Maybe you're saying that the FDA has the exclusive authority to regulate tobacco products, and the states can't regulate in any way?? (Obviously this is not so with analogs.)

 

[frosting]

If this goes anything like the last one, we may need Hershey bars, graham crackers, and a tent.

 

[JustJulie]

I can't find a Call To Action from CASAA on this, did anyone see one that I missed?

CASAA issued the Connecticut Call to Action yesterday: CASAA: Call to Action: Connecticut. Oppose HB 5286 (Confusing labeling standards that would serve to limit availability of products for adults) and SUPPORT SB 24 (Ban on sales to minors)

 

[JustJulie]

I know we don't like to refer to ourselves as a tobacco product but we are governed under the Tobacco Control Act despite the fact the FDA hasn't taken any measurable steps at this time.

This isn't quite correct. We are NOT currently governed under the Tobacco Control Act. Judge Leon ruled that e-cigarettes could not be regulated as pharmaceuticals absent therapeutic claims being made in marketing. He further opined that if FDA wanted to assert jurisdiction over e-cigarettes, it would have authority under the Tobacco Control Act.

However, in order to bring us in under the Tobacco Control Act, FDA needs to assert its jurisdiction, and the way it does that is through deeming regulations. FDA has announced its intention to bring e-cigarettes in under the Tobacco Control Act and has actually prepared draft regulations, but those proposed regulations have NOT been approved by OMB. (In fact, there is a whole separate thread discussing what is going on with FDA deeming regulations, the word being that OMB bounced the proposed regs as being too restrictive.)

Be it as it may, unless and until proposed regulations are issued, commented on, and then finalized, we are not tobacco products under the Tobacco Control Act.