Deeming Regulations have been released!!!!

[mikepetro]

Dont know if this will help us or not:



FOR IMMEDIATE RELEASE

July 15, 2016

Contact:
Christine Hewitt
Cigar Association of America
chewitt@cigarassociation.com

Kip Talley
International Premium Cigar and Pipe Retailers Association
kip@ipcpr.org

Glynn Loope
Cigar Rights of America
glynn.loope@cigarrights.org

WASHINGTON, D.C. - The three major cigar and tobacco industry associations filed suit Friday against the United States Food and Drug Administration's "Deeming Rule." The Cigar Association of America, International Premium Cigar and Pipe Retailers Association, and the Cigar Rights of America are asking the District Court for the District of Columbia for a declaratory injunction "vacate, set aside and enjoin the enforcement of the final rule" because it is violates numerous federal statutes as well as the federal rulemaking process. A full copy of the filing, which details nine counts against the FDA and the United States Department of Health and Human Services, can be found here.

"Just over one month ago, our three associations pledged to work together to develop the appropriate response to the FDA's new deeming rule. After a thorough and detailed legal review, we are challenging this unlawful regulatory action in federal court to protect the statutory and constitutional rights of our industry and its members. The fact that all three of our organizations are acting in once voice speaks to the urgency and seriousness of this action," said Mark Pursell, CEO of the International Premium Cigar and Pipe Retailers Association.

The complaint challenges:

• FDA's improper application of the February 15, 2007 grandfather date to cigars and pipe tobacco, which subjects those products to more intrusive regulations than cigarettes and smokeless tobacco
• FDA's impermissible assessment of a tax in the form of user fees, and its allocation of these user fees only to cigars and pipe tobacco and not to other newly deemed products
• FDA's failure to perform an adequate cost-benefit analysis to take into account the effects of the Final Rule on small businesses as is required by the Regulatory Flexibility Act
• FDA's unjustified decision to require cigar health warning labels to be 30% of the two principal display panels of packages
• FDA's unlawful designation of tobacconists who blend finished pipe tobacco or create cigar samplers of finished cigars as "manufacturers," which subjects those businesses to greater regulation than if they were "retailers"
• FDA's incorrect decision to regulate pipes as "components" or "parts" rather than as "accessories"

"The FDA ignored the law to craft these expansive and sweeping regulations and cannot justify many of the arbitrary and capricious regulations it purports to enact," said Glynn Loope, Executive Director of Cigar Rights of America. "This lawsuit is a specific and detailed challenge to the FDA's unprecedented assertion of rulemaking authority. "We are acting in one voice to protect the legal rights of our industry at all levels, from the manufacturer, the community retail tobacconist, to the adult patrons of cigars."

Speaking about the lawsuit, Cigar Association of America President Craig Williamson said, "We all worked in good faith to inform and educate the FDA on the unique nature of our industry, its members and our consumers. We hoped the FDA would craft a flexible regulatory structure that accounted for the uniqueness of our industry. Instead, we got a broad, one-size-fits-all rule that fails to account for how cigars and premium cigars are manufactured, distributed, sold and consumed in the United States. The FDA exceeded its statutory authority and violated the federal rulemaking process when crafting this set of broad and sweeping regulations. This challenge asserts nine violations of federal law and rulemaking authority. We are asking the court to enjoin the enforcement of this unlawful regulatory scheme. We are confident that when the court reviews our case on its merits, we will prevail."

 

[mattiem]

Every thing I have purchased since I started this journey has been paid for with a credit card. If 'the powers that be' wanted to come down hard on me or any of us all they have to do is request that info from the CC provider. I wouldn't put that past them to do exactly that Just because I am paranoid doesn't mean that they won't/can't do it.

 

[Sugar_and_Spice]

PA is just ahead of the curve, this type of legislation will effect most Americans in a few years time. The 40% tax is just the starting point, over the next ten years it will double or triple. Deeming that vaping is "tobacco" and regulating it has always been about the money, not health or safety.

Laws are rarely retroactive unless explicitly stating so. Items currently in your possession should be just fine, but I'd be sure and have/keep a copy of the invoice showing the actual purchase date to be safe. I recommend doing this because regardless of what Americans have been lead to believe, you -ARE- basically guilty as charged in our "justice" system unless you can prove your innocence beyond a reasonable doubt. That's how it really works.

This should be challenged in court. And having to prove innocence is much more prevalent in our lifetimes than earlier in history. This has been a gradual turn and peeps just tend to accept it instead of challenging it. I think a lot of these liberal types of attitudes are based off of tv programs that kids watch and they believe to be true. Look at Law and Order....omg.....peeps really believe that drivel is legit.

 

[Kent C]

Can you post the link to where you saw this?

The actual bill:

http://www.legis.state.pa.us/CFDOCS...d=0&billBody=H&billTyp=B&billNbr=1198&pn=3731

I searched "tobacco" which will eventually get you to ecigs - also "electronic" will get you there - pg 51. The quote above 'taxes and penalties' is on pg 58. The real fascist-type stuff is pg 59:

(b) Examination.--The department is authorized to examine the books and records, the stock of tobacco products and the premises and equipment of any taxpayer in order to verify the accuracy of the payment of the tax imposed by this article. The person subject to an examination shall give to the department or its duly authorized representative, the means, facilities and opportunity for the examination. Willful refusal to cooperate with or permit an examination to the satisfaction of the department shall be sufficient grounds for the suspension or revocation of a taxpayer's license. In addition, a person who willfully refuses to cooperate with or permit an examination to the satisfaction of the department commits a misdemeanor and shall, upon conviction, be sentenced to pay costs of prosecution and a fine of $500 or to imprisonment for not more than one year, or both, at the discretion of the court.

I don't see anything "retroactive" where you would be charged with anything you bought before the law, but the 'stock provisions' on pg 57 could be considered:

Wholesalers, retailers, unclassified importers and manufacturers shall file monthly reports on a form prescribed by the department by the 20th day of the month following the sale or purchase of tobacco products from any other source on which the tax levied by this article has not been paid. The tax is due at the time the report is due. The department may require the filing of reports and payment of tax on a less frequent basis at its discretion.

Again, "unclassified importers" are defined as:

"Unclassified importer." A consumer who purchases tobacco products using the Internet or mail order catalogs for personal possession or use in this Commonwealth from persons that are not licensed.

 

[Shawn Hoefer]

Didn't we in the United States have some sort of skirmish about taxation without representation?

Sent from my SAMSUNG-SM-N910A using Tapatalk

 

[Eskie]

That's really no different from many laws in other states. If I order an item online and not pay NYS sales tax, I am required by law to declare that on my individual state income tax return. If I get audited and did not declare it and the examiner discovers the omission, I can not only be required to pay that tax, along with a penalty and interest on the amount.

However, unless the item ordered was actually a piece of expensive jewelry or artwork I had delivered out of state to avoid the sales tax, then brought it into NY state for my use/display (just a random example), and avoided paying tens, of not hundreds of thousands of dollars in sales tax (yes, there's lots of expensive art out there if you're into it) there's a pretty good chance I might be prosecuted criminally for tax evasion. However, if the items in question were some fuzzy slippers and some wire I bought on Amazon, the likelihood of prosecution is essentially zero. Criminal prosecutions are expensive and far from a guaranteed outcome that no one on the Federal, State, or local level will go that route unless a LOT of money is involved. If you bought a liter of nic for $100 (just picking an inflated number, and failed to pay an extra $40 on your tax return and you're audited, you'll have a fine and interest to pay, but you're not going to a super max prison.

Wholesalers and retailers, however, can expect far more scrutiny as the state tax office already knows what you sell, and can generate a rough idea based on your gross revenues about how much ingredient volume you have sold/processed to generate that revenue. If your declared tax doesn't match what their systems estimate it should have been, an audit will be triggered, and if you did avoid a significant sum, they might set out to make an example of you.

PA state residents may be harmed by this through higher prices and less selection of retail B&M shops as those shops are squeezed out of business, but unless some individual starts buying thousands of dollars of nic/e-juice a year and not paying taxes as required, I can't see many heading off to the big house. Chances are, if you do shop on Amazon or another online retailer, and live in a state with sales tax (who doesn't), there are already sales taxes you might not have paid and technically be in violation already, apart from vaping. (some states "help" you out by letting you simply declare a given amount based on your gross income without requiring all your receipts, which may or may not work out in your favor).

 

[mattiem]

It seems we have overcrowding in our prison system right now because of the last product 'the powers that be' tried to squash I expect some folks will be jailed just to prove that they can Yes, I am that paranoid.

 

[Vandal]

The department is authorized to examine the books and records, the stock of tobacco products and the premises and equipment of any taxpayer in order to verify the accuracy of the payment of the tax imposed by this article.

Does "taxpayer" include any person or only retailers?

What of people who, rather than order from the internet, drive across the state line to purchase?

 

[BreSha6869]

It seems we have overcrowding in our prison system right now because of the last product 'the powers that be' tried to squash I expect some folks will be jailed just to prove that they can Yes, I am that paranoid.

Are there VG/PG sniffing dogs? If so, I hope the cops don't confiscate my daughter's baby Tylenol and Vick's VapoRub when they come for my freezer!

 

[Eskie]

Are there VG/PG sniffing dogs?

They're in the process of training dogs specifically for Unicorn Milk. No idea how far along that program is, but I hear the Unicorns are changing their diet in an attempt at avoidance.

As to PA individual taxpayers, I'd feel pretty safe. Still, I probably would not volunteer to run 4 or 5 Co-ops a year and have it all shipped to me. Might not involve a lot of money but it could theoretically attract attention, especially with nosy neighbors.

 

[Kent C]

Does "taxpayer" include any person or only retailers?

What of people who, rather than order from the internet, drive across the state line to purchase?

Retailers and taxpayers have different definitions: Pg 52

"Taxpayer." Any person subject to tax under this article.

"Retailer." A person that purchases or receives tobacco products from any source for the purpose of sale to a consumer...

"Consumer." An individual who purchases tobacco products for personal use and not for resale.

"Unclassified importer." A consumer who purchases tobacco products using the Internet or mail order catalogs for personal possession or use in this Commonwealth from persons that are not licensed.

"Person." An individual, unincorporated association, company, corporation, joint stock company, group, agency, syndicate, trust or trustee, receiver, fiduciary, partnership, conservator, any political subdivision of the Commonwealth or any other state.

(a) Sales or possession.--Any person who sells or possesses any tobacco product for which the proper tax has not been paid commits a summary offense

Didn't see any wording on 'across state lines' purchases. "Possession" may cover that though.

 

[rosesense]

Friday, July 15, 2016

WASHINGTON — Sen. Ron Johnson, chairman of the Senate Homeland Security and Governmental Affairs Committee, demanded further answers from the FDA on Friday after sending a third letter to FDA Commissioner Robert M. Califf seeking information on the recent e-cigarette regulation.

Majority Media | Homeland Security & Governmental Affairs Committee | Homeland Security & Governmental Affairs Committee

I must have missed that the FDA responded to the first 2 letters:

 

[Kent C]

Friday, July 15, 2016

WASHINGTON — Sen. Ron Johnson, chairman of the Senate Homeland Security and Governmental Affairs Committee, demanded further answers from the FDA on Friday after sending a third letter to FDA Commissioner Robert M. Califf seeking information on the recent e-cigarette regulation.

Majority Media | Homeland Security & Governmental Affairs Committee | Homeland Security & Governmental Affairs Committee

I must have missed that the FDA responded to the first 2 letters:

Thanks for posting - well worth reading, imo. Snippets:

The FDA’s acknowledgement that it has, at best, incomplete information raises questions about the adequacy of the FDA’s justification for the rule....

Additionally, I asked whether the FDA would issue a revised rule if sufficient data demonstrates that e-cigarettes are a safer alternative to traditional cigarettes. The FDA did not answer this question. Instead, the FDA gave an ambiguous answer, reasoning that the FDA must regulate in order to obtain more information about e-cigarettes. The FDA stated:

"The rule is the beginning of the process of the regulation of e-cigarettes, and the other products covered in the final rule. That regulatory framework will evolve over time as we learn more about the products..."

The FDA’s statement is concerning. Rather than conduct research to better understand the effects of the product prior to regulating, the FDA chose to issue a rule without a proper understanding of the product itself. Because federal regulatory agencies seldom shrink their own jurisdiction, the FDA’s action could result in a far-reaching regulation that fails to consider the regulatory impact on small businesses selling e-cigarettes, product innovation, and the public’s health.

(red font) - Sounds a bit like Pelosi's comment on obamacare - "we have to pass the bill so that you can find out what is in it"

And another reference that 'this is just the beginning' ... sigh...

 

[DC2]

It's nice that he addressed the letter thusly...

The Honorable Robert M. Califf, M.D.

I would not have been so kind.

As for the letter itself.
Rock on Senator Johnson!!

 

[Sugar_and_Spice]

Thanks for posting - well worth reading, imo. Snippets:

The FDA’s acknowledgement that it has, at best, incomplete information raises questions about the adequacy of the FDA’s justification for the rule....

Additionally, I asked whether the FDA would issue a revised rule if sufficient data demonstrates that e-cigarettes are a safer alternative to traditional cigarettes. The FDA did not answer this question. Instead, the FDA gave an ambiguous answer, reasoning that the FDA must regulate in order to obtain more information about e-cigarettes. The FDA stated:

"The rule is the beginning of the process of the regulation of e-cigarettes, and the other products covered in the final rule. That regulatory framework will evolve over time as we learn more about the products..."

The FDA’s statement is concerning. Rather than conduct research to better understand the effects of the product prior to regulating, the FDA chose to issue a rule without a proper understanding of the product itself. Because federal regulatory agencies seldom shrink their own jurisdiction, the FDA’s action could result in a far-reaching regulation that fails to consider the regulatory impact on small businesses selling e-cigarettes, product innovation, and the public’s health.

(red font) - Sounds a bit like Pelosi's comment on obamacare - "we have to pass the bill so that you can find out what is in it"

And another reference that 'this is just the beginning' ... sigh...

Since several references in the FDA's response seems to be identical, a thought comes to mind.
'one protests too much'

 

[BreSha6869]

Friday, July 15, 2016

WASHINGTON — Sen. Ron Johnson, chairman of the Senate Homeland Security and Governmental Affairs Committee, demanded further answers from the FDA on Friday after sending a third letter to FDA Commissioner Robert M. Califf seeking information on the recent e-cigarette regulation.

Majority Media | Homeland Security & Governmental Affairs Committee | Homeland Security & Governmental Affairs Committee

I must have missed that the FDA responded to the first 2 letters:

Interesting how the FDA June 16th response makes mention of the fact they will grant "extra time" to small producers. They consider small as under 150 employees and under $5M/yr in annual revenue.

Obviously MUCH more detail and clarification required, but that could be a very good thing, no?

 

[retired1]

Didn't we in the United States have some sort of skirmish about taxation without representation?

We did. However it doesn't apply here due to there being representation. They're just choosing to ignore those that they're supposed to represent.

 

[DC2]

We did. However it doesn't apply here due to there being representation. They're just choosing to ignore those that they're supposed to represent.

That pretty much sums up the current state of government.
Both here, and everywhere, since the birth of mankind.

We had a fun ride while it lasted though!

We were cool, we were new, we were edgy...
We thought we were above the fray.

 

[zoiDman]

Check Out what it says on the bottom of Page #68...


Section 1233-A. Labeling and packaging.


It shall be unlawful to knowingly possess, sell, give,

transfer or deliver to any person, any tobacco product where the

packaging of which has been modified or altered by a person

other than the original manufacturer. Modification or alteration

shall include the placement of a sticker, writing or mark to

cover information on the packages. For purposes of this section,

a tobacco product package shall not be construed to have been

modified or altered by a person other than the manufacturer if

the most recent modification or alteration was made by the

manufacturer or person authorized by the manufacturer and

approved by the department.


Section 1234-A. Information exchange.


The department is authorized to exchange information with any

other Federal, State or local enforcement agency for purposes of

enforcing this article.

http://www.legis.state.pa.us/CFDOCS...d=0&billBody=H&billTyp=B&billNbr=1198&pn=3731

So if you get Pulled Over and have some e-Liquid in a Dripper Bottle, its off to Sing-Sing you go.

Did we Lose a War or Something?
Is this America?

 

[bigdancehawk]

Interesting how the FDA June 16th response makes mention of the fact they will grant "extra time" to small producers. They consider small as under 150 employees and under $5M/yr in annual revenue.

Obviously MUCH more detail and clarification required, but that could be a very good thing, no?

The accommodations for small businesses are a token gesture, just so the FDA can say they took them into account, as the law requires. It will be very surprising if any small businesses can successfully complete a PMTPA and very few, if any, will try. As most here have been saying all along, the market will almost certainly be left to an oligopoly of closed system manufacturers, consisting mostly of BT.