Deeming Regulations have been released!!!!

[CMD-Ky]

I don't know who here feels SAFE instead of FREE, but it sure as hell is NOT ME.

Anna

Just the rambling musings of an old lawyer and former member of the judiciary - probably worthy of scooting right on by.

I "feel" neither safe nor free. Feelings are mediated through the amygdala and I attempt to avoid decisions based upon feelings alone. I think that I am both relatively free and relatively safe. When I was a not so young law student, I went to the law library - they still had books so you know it was a ways back. I decided to measure in inches the statutory laws and regulations of each state. My thought was that my freedom would most likely be found in those states with the fewest inches of governmental control (oops, I mean duly enacted laws and regulations). I also thought that the states with the fewest inches of law and regulation would most likely be the safest, the fewer inches would be indicative of a relatively self regulating population necessitating less governmental control.

I didn't fully measure the federal statutes and regulations, my measuring device ran out of tape and that told me all that I needed to know; I quit the measurement. Wickard v. Filburn, 317 U.S. 111 (1942), having destroyed any concept of federalism, told me that regardless of what the states would do, the federal government would eventually invade every area constitutionally left to the states.

At the time of measurement, I was correct regarding the conclusions of paragraph one. I knew that I would find myself, sometime in the future, correct regarding the conclusions arrived at in paragraph two. My thoughts were dramatically confirmed when Chief Justice Roberts wrote that the federal government could mandate that a private individual could be compelled to purchase health care insurance. [National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).]

I think that my relative freedom has diminished due to excessive legislation, regulation and litigation over both. I am now directed to buy a fuel which has been shown to damage the engines of my machines - for the greater good. My relative safety has diminished considerably over time despite the ever increasing attempts to control human behavior. I am more likely to be maimed today than in 1950. Both done with the very best of intent. We have allowed this to happen and as a result of our apathy there are no limits to federal power.

 

[DarrenMG]

@CMD-Ky - Liked your post

The reality is though we won't solve anything, sad but true. Most people cannot afford protection under our private legal system, or find it so daunting they won't try.

We want our government to stay out of our business right up until the day we don't. A town's water supply is polluted; the next Thalidomide baby case; 20 years later there is a proliferation of cancer due to some product we thought was safe... people will end up going 'where is/was my government to protect me?' But again, most people cannot afford private legal pursuits.

Then there is always the moral pursuit motive that isn't going away. 'I am offended by what someone else is doing, even if it has no effect on me directly', or maybe it does, in some indirect way (e.g., it might cause the cost of my insurance to increase), where is my government?

For whatever it's worth though I don't have a problem with others around me not wanting to be exposed to vapor. Fine. I do have a problem with others who want government interference to protect me from vaping in my home. But (the big but), if 20 years from now it's found that vaping causes a debilitating disease en-masse, I'd gamble that there will be plenty of people saying 'where was my government to protect me/us?'

 

[Sugar_and_Spice]

I doubt that we as citizens would be without some sort of vape products as the 1 thing Congress told the FDA that they COULD NOT DO is to ban vaping. I am surprised that vape shops in SF have not brought any law suits as far as I know.

 

[CMD-Ky]

I doubt that we as citizens would be without some sort of vape products as the 1 thing Congress told the FDA that they COULD NOT DO is to ban vaping. I am surprised that vape shops in SF have not brought any law suits as far as I know.

I have a hunch that most vape shops work on a small margin. They, even collectively, most likely can't afford to litigate the city who will use the shop's own taxes to finance the city's defense. If the shop could afford the litigation then years later, should the shop or shops afford the costs, may or may not find itself vindicated.

The city of San Francisco is not restrained by prohibitions mandated to the FDA, if any exist.

It pains me to say this seeing as how I spent the majority of my productive years in the system of justice, too often the justice system is about which party can litigate the other into economic submission. Justice is too often the casualty of litigation and not the result of litigation.

 

[Rossum]

I doubt that we as citizens would be without some sort of vape products as the 1 thing Congress told the FDA that they COULD NOT DO is to ban vaping. I am surprised that vape shops in SF have not brought any law suits as far as I know.

When/where/how did Congress tell the FDA that?

 

[stols001]

Call me a cynic, but to be quite honest, I consider letters to the Federal Government fairly similar to going out and burning a big pie of money at night and hoping the boat you wanted will show up on your lawn the next day.

I do kind of think that maybe these efforts can work on a smaller scale of government, like oh, maybe counties.

But I 100% guarantee the feds are not keeping a careful tab of pro versus con letters. Their aides are reading the con letters for heartfelt ones that they can use in speeches.

The pro ones, if they are lucky, are traded between the aides for when they need "humorous light reading" over lunch between offering sexual favors to their congressman to climb the ladder.

I'm not saying writing a letter is wrong, I am saying I do believe vaping and Federal decision making about it are a little bit past that point.

Anna

I understand why they do it. Writing a letter makes you feel like you have "done" something, when what actually needs to be done is your gun needs to get oiled.

Just cleaning house FDA don't take what I'm saying too seriously. It's okay, I know you never do in a factual sense but an oiled gun is a safer gun and I am ALL about safety just as you are.

 

[Sugar_and_Spice]

When/where/how did Congress tell the FDA that?

when Congress gave the FDA the deeming rights and how to go about doing the job they should be doing themselves.
I found it when I originally looked up the filing online a couple years ago. I will see if I can find that but it will take some time.

 

[zoiDman]

when Congress gave the FDA the deeming rights and how to go about doing the job they should be doing themselves.
I found it when I originally looked up the filing online a couple years ago. I will see if I can find that but it will take some time.

This might be what you are looking for...

The Tobacco Control Act does not:
The law makes clear that FDA's role is to regulate and protect the public health, but it places a few restrictions on FDA's powers. FDA cannot:

• Require prescriptions to purchase tobacco products.
• Require the reduction of nicotine yields to zero.
• Ban face-to-face sales in a particular category of retail outlets.
• Ban certain classes of tobacco products.

Overview of the Family Smoking Prevention and Tobacco Control Act

---


Limitations

1. In general. No restrictions under paragraph (1) may
   1. prohibit the sale of any tobacco product in face-to-face transactions by a specific category of retail outlets; or
   2. establish a minimum age of sale of tobacco products to any person older than 18 years of age.

Section 906 of the Federal Food, Drug, and Cosmetic Act

Unfortunately, what happened in SF wasn't an FDA Action.

And State and Localities have the Ability to Ban the Sales within their Jurisdiction.

 

[Eskie]

Meanwhile back in the real world.

I couldn't find any more about this but it's a safe bet that vaping products won't be included in the list of cessation products covered.

This is why BP doesn't like us.

"INDIANAPOLIS (AP) — Two state agencies are taking steps to make it easier and cheaper for Indiana residents to quit smoking.

The policy changes were announced Monday by the State Department of Health and Indiana's Family and Social Services Administration.

State health Commissioner Dr. Kris Box says she's issued an order effective Aug. 1 to allow Hoosiers to buy tobacco cessation products at pharmacies without a prescription. That's expected to make those products less expensive and easier to obtain.

FSSA Secretary Dr. Jennifer Walthall says Indiana Medicaid will also begin reimbursing health care providers for tobacco cessation counseling for expectant mothers who want to quit smoking or using other tobacco products.

Walthall says Indiana Medicaid will also remove copayments for tobacco cessation products for pregnant women and those who've given birth within one year."

Unless there's something particular about Indiana, smoking cessation NRT products are ready over the counter and don't require a prescription. Certain medications do require a prescription like Chantix and the state can't waive that requirement, or if there is some weird loophole it's a terrible decision to allow Chantix or Wellbutrin to be handed out like candy without a prescription.

when Congress gave the FDA the deeming rights and how to go about doing the job they should be doing themselves.
I found it when I originally looked up the filing online a couple years ago. I will see if I can find that but it will take some time.

The TCA of 2009 grandfathered in tobacco products on the market as of 2007. Hence cigarettes and all are safe. There were no vape products in 2007, or if there was one, it's not what we use today or even still on the market. There is to my knowledge no separate legislation passed that requires the FDA to keep vaping products on the market. But I'd be really happy if there was.

 

[CMD-Ky]

True, true! Even the most ardent devotee of limited government will be able to rationalize their own exception to the principle, maybe even me.

@CMD-Ky - Liked your post

The reality is though we won't solve anything, sad but true. Most people cannot afford protection under our private legal system, or find it so daunting they won't try.

We want our government to stay out of our business right up until the day we don't. A town's water supply is polluted; the next Thalidomide baby case; 20 years later there is a proliferation of cancer due to some product we thought was safe... people will end up going 'where is/was my government to protect me?' But again, most people cannot afford private legal pursuits.

Then there is always the moral pursuit motive that isn't going away. 'I am offended by what someone else is doing, even if it has no effect on me directly', or maybe it does, in some indirect way (e.g., it might cause the cost of my insurance to increase), where is my government?

For whatever it's worth though I don't have a problem with others around me not wanting to be exposed to vapor. Fine. I do have a problem with others who want government interference to protect me from vaping in my home. But (the big but), if 20 years from now it's found that vaping causes a debilitating disease en-masse, I'd gamble that there will be plenty of people saying 'where was my government to protect me/us?'

 

[Rossum]

when Congress gave the FDA the deeming rights and how to go about doing the job they should be doing themselves.
I found it when I originally looked up the filing online a couple years ago. I will see if I can find that but it will take some time.

You mean the Marlboro Protection Family Smoking and Tobacco Control Act?

It never mentions vaping at all. It does prohibit the FDA from banning all cigarettes, all smokeless tobacco products, all little cigars, all cigars other than little cigars, all pipe tobacco, or all roll-your-own tobacco products; or requiring the reduction of nicotine yields of a tobacco product to zero. Now since the FDA has deemed vapor products to be tobacco products, one could make the argument that they can't ban them, but since there's no explicit mention of them, any attempt by the FDA to ban them would surely end up in the courts.

It also explicitly does not prohibit federal agencies, states, political subdivisions, or Indian tribes from enacting additional or more stringent measures, meaning it does not prevent a city (like SF) from banning the sale & distribution of vapor products.

 

[rosesense]

Ok, Rose. I'll just join everyone else and just sit here on my ... then. Trump does do his own tweets, but I guess we shouldn't try that either.

Wow, sorry I said anything at all. Guess I should keep my opinions to myself.

Also, I never said to sit and do nothing. I also don't think everyone else is doing nothing. Kristin works hard to keep us informed and many are still fighting the good fight.

 

[Rossum]

maybe even me.

I rather doubt that.

 

[CublalaLand]

The Corporate control over Government polices has been put into the limelight specifically over the anti-vape agenda. Youtube acting in lockstep to enforce political agenda over what should be an open platform provided by content creators was extremely nefarious and obvious. The posts on reddit restating the policies behind the actions are so convoluted they're absurd, but they have the most upvotes, anyways. The internet is a place where people share ideas unless it's reddit, where people go to be told what to think.

+-What's happened to social media alone should anger anyone paying attention. It's basically been demolished as an open platform and turned into a mainstream news/late-night dickgrab show repeat. It's such a massive compromise of what should be public resources. They're not making mistakes, scratching their heads and wondering what could have gone wrong, these are people intentionally doing everything they can to subvert individual interest to the theocorporate state, and only afford livings creating convoluted explanations to justify it.

 

[CMD-Ky]

There is a legal maxim of statutory construction (which is ignored when convenient):

Expressio Unius Est Exclusio Alterius roughly translated as "the expression of one thing is the exclusion of the other".

If I was a pettifogging kind of guy I would argue that vaping existed at the time of the enacting. Because Congress in elaborating that which cannot be banned and because it did not include vape products in that the list of prohibitions the exclusion of vaping from that list was intentional and therefore vape could be banned.

Only a lawyer could love this kind of stuff.

I rather doubt that.

More credit than I deserve, I hope that when I make my rationalization that I do so "for the greater good".

You mean the Marlboro Protection Family Smoking and Tobacco Control Act?

It never mentions vaping at all. It does prohibit the FDA from banning all cigarettes, all smokeless tobacco products, all little cigars, all cigars other than little cigars, all pipe tobacco, or all roll-your-own tobacco products; or requiring the reduction of nicotine yields of a tobacco product to zero. Now since the FDA has deemed vapor products to be tobacco products, one could make the argument that they can't ban them, but since there's no explicit mention of them, any attempt by the FDA to ban them would surely end up in the courts.

It also explicitly does not prohibit federal agencies, states, political subdivisions, or Indian tribes from enacting additional or more stringent measures, meaning it does not prevent a city (like SF) from banning the sale & distribution of vapor products.

 

[stols001]

I'm sorry. I'm just bitter. Probably anything is better than nothing.

I remember my starry eyed phase but at least doing something is doing something.

Anna

 

[CMD-Ky]

Wow, sorry I said anything at all. Guess I should keep my opinions to myself.

Also, I never said to sit and do nothing. I also don't think everyone else is doing nothing. Kristin works hard to keep us informed and many are still fighting the good fight.

I disagree with sentences one and two, I agree with sentences three, four and five.

 

[Bronze]

I disagree with sentences one and two, I agree with sentences three, four and five.

I second your sentence.

 

[Sugar_and_Spice]

You mean the Marlboro Protection Family Smoking and Tobacco Control Act?

It never mentions vaping at all. It does prohibit the FDA from banning all cigarettes, all smokeless tobacco products, all little cigars, all cigars other than little cigars, all pipe tobacco, or all roll-your-own tobacco products; or requiring the reduction of nicotine yields of a tobacco product to zero. Now since the FDA has deemed vapor products to be tobacco products, one could make the argument that they can't ban them, but since there's no explicit mention of them, any attempt by the FDA to ban them would surely end up in the courts.

It also explicitly does not prohibit federal agencies, states, political subdivisions, or Indian tribes from enacting additional or more stringent measures, meaning it does not prevent a city (like SF) from banning the sale & distribution of vapor products.

Thanks to those whom looked this up. I found all that you posted and was coming back to post so now I don't have to, my eyes are crossed from reading in the US Code indexes.

I do remember in the beginning(yeah, I've been around that long) that when congress first addressed vaping that the FDA specifically said they could not ban it, but I am now assuming that has been buried or 'deleted' out per say as they further defined their intentions.

 

[cats5365]

Thanks to those whom looked this up. I found all that you posted and was coming back to post so now I don't have to, my eyes are crossed from reading in the US Code indexes.

I do remember in the beginning(yeah, I've been around that long) that when congress first addressed vaping that the FDA specifically said they could not ban it, but I am now assuming that has been buried or 'deleted' out per say as they further defined their intentions.

I think that when they were doing the press conferences around 2016 the FDA said they were not banning vape products. :sarcasm on: Anyone and his brother was welcome to submit a PMTA for approval, and if they got the approval, they were welcome to sell their wares. :sarcasm off:

The problem came with all of the nasty little surprises in the requirements that would make it nearly impossible for anyone to actually meet all of those requirements, much less pay for the process of creating their application and submitting it. If your PMTA got denied, too bad, so sad, you are out of business and bankrupted.