If the Intended Use portion of the FDA regulation is published, might a First Amendment challenge be successful? If customer reviews, testimonials, even forum posts are used against a company to allow the FDA to claim regulatory purview, are they not infringing on freedom of speech?
I mean if the same approach were utilized across the board there are many foods and herbal supplements that would become drugs overnight. The whole idea is ridiculous, and there must be some way to stop it.
I see it as who is promoting / publishing the words being spoken (or written) and to what end?
I heard about vaping initially via word of mouth, even in the information age. I could've done (google) research on it and found out way more than what I was initially being told, but even on hindsight, I don't see why I would've gone in that direction. The word of mouth aspect is something I don't see how we can lose on other than vaping becomes fully illegal (akin to 'other stuff') or ANTZ steps up its game to make a few examples of what it thinks shouldn't be allowed, and gets some LEO types to go along with it. Example such as 18 year old wears shirt to school that has a pro-vaping reference on it, and is busted / made to take it off, and the kid and kid's parents don't challenge this. ANTZ then floats it to media saying here is example of what you can't do going forward with regards to pro-vaping position.
But if a vending company is publishing customer words on their company website, to show how Product is really wonderful and liked by its users, I can see that being disallowed given how I understand language of FSPTCA. I do not think challenges to that would win based on 1st Amendment.
What I see as the tricky territory is vaping forums and blogs that ARE NOT in any way funded / sponsored by vaping companies. That's where I see ANTZ trying to hit hard post deeming, and where I hope our side hits hard back. In reality, those will always be around, so I don't see us entirely losing, but because ANTZ holds a lot of sway, then I think if they don't over play their hand, they could take down a few of the popular ones. If they overplay their hand, and I consider that very likely, they could end up creating far more, as it will suddenly be a very cool place to hang out, share thoughts, rally against opposition. Could even be a place to mobilize action and instead of having 20% of the visiting audience that might be interested in politics of vaping, it might be more like 80% of visiting audience wants to mobilize and change the political dynamic.
ANTZ stands as much of a chance going forward as Snoke does in the new Star Wars trilogy.