FDA Does Intended Use violate the First Amendment?

[Kent C]

There is no cause of action for "wrongful firing" unless it's in breach of a contract or the plaintiff was fired because of membership in a protected class.

Understood. Many of my scenarios would be handled 'internally' to clear one's name through various venues that are available. There is much more to say about this but this isn't the case. Stuff like how the press and others can not be charged with libel when the person is a "public person". Which violates the idea that all are 'equal before the law' and a bunch of other stuff not worth getting into here. I've said my piece - again, some agree, some don't. Lawyers knowing the law (even though I consider it unconstitutional) won't agree or will cite present law. Again, I know about them (not know as thoroughly as you) , disagree with them and in most cases will comply with them on practical grounds - but not all of them :- )

 

[aikanae1]

Understood. Many of my scenarios would be handled 'internally' to clear one's name through various venues that are available. There is much more to say about this but this isn't the case. Stuff like how the press and others can not be charged with libel when the person is a "public person". Which violates the idea that all are 'equal before the law' and a bunch of other stuff not worth getting into here. I've said my piece - again, some agree, some don't. Lawyers knowing the law (even though I consider it unconstitutional) won't agree or will cite present law. Again, I know about them (not know as thoroughly as you) , disagree with them and in most cases will comply with them on practical grounds - but not all of them :- )

There is a dual system of justice. Sad to see, but that's reality. It's kinda the elephant in the room.

 

[retired1]

This is not the OUTSIDE, and this has little to nothing to do with the proposed changes to Intended Use and the FDA. So I'll quote another of your posts:

You're the one who opened the Free Speech argument when it comes to "Intended Use". This is on topic and germane to the discussion you started.

 

[skoony]

So you disagree with any law that allows an individual legal recourse for speech that would be considered maliciously slanderous?

However, if I'm correct, KentC thinks it's perfectly fine to be able to spout something like that, all in the name of free speech. If free speech is absolute, then there's no recourse via the courts.

I think we are discussing two separate speech issues.
As a free speech purist I believe one can say anything one would like the caveat being that
one also is accountable for said speech. As an example one can yell fire in a crowded theatre.
If there is no fire and people are injured in the resulting panic the shouter is clearly accountable
for the actions of his use of free speech. If there was a fire then the shouter has committed
no transgression and may be considered a hero.
As free speech pertains to the intended use doctrine I personally do not see any restrictions on free
speech. In essence isn't the FDA saying to company A this is what you say your product is used for but
this is what B (reviewers,testimonials,user comments,etc..) are saying it is really used for.(wink,wink.)
Whether these utterings are on the companies web site or elsewhere is irrelevant. The FDA is not
restricting nor attempting to hold at fault 2nd and 3rd party utterer's right to free speech. All they
are saying is we are on to this charade. The jig is up. I personally think this refinement in intended
use was primarily the result of a way to finally get rid of a thorn in the government's side. The glass
tobacco ware industry. We know that these products are for tobacco,the sticker says so. Also
for the past 10 to 20 years BP and BG have been trying to lock down nutritional supplements.
It's been BP's contention for a long time that if herbs,spices,foods of any kind, vitamins or other
nutritional supplements do have healing and or other medicinal qualities, they should be considered
medicines and treated as such under FDA regulation. I kid you not. As dumbfounded as this is
BP has been pushing this. I think we can all see the total folly this would be. As nutritional science
advances it is becoming clearer how some nutritional supplements in fact are very helpful.
The trouble is anyone can do their own research and buy whatever they think is helpful for
them right from the free market.
Well I transgress.

Regards
Mike

 

[curiousJan]

You're the one who opened the Free Speech argument when it comes to "Intended Use". This is on topic and germane to the discussion you started.

No, it's not. You're not discussing anything related to intended use, instead choosing to pursue discussion of constitutional interpretation and legal precedent that are far removed from the original topic.

 

[curiousJan]

Also
for the past 10 to 20 years BP and BG have been trying to lock down nutritional supplements.
It's been BP's contention for a long time that if herbs,spices,foods of any kind, vitamis or other
nutritional supplements do have healing and or other medicinal qualities, they should be considered
medicines and treated as such under FDA regulation. I kid you not. As dumbfounded as this is
BP has been pushing this. I think we can all see the total folly this would be. As nutritional science
advances it is becoming clearer how some nutritional supplements in fact are very helpful.
The trouble is anyone can do their own research and buy whatever they think is helpful for
them right from the free market.
Well I transgress.

Regards
Mike

Interesting point. Is this the FDA attempting to regulate to the lowest common denominator of Joe Citizen who wants BG to protect him from all the 'evils' of the world? Or just lining the pockets of BP?

I mean, seriously, Joe Citizen shouldn't be allowed to use naturally existing plants and compounds to address his health concerns, should he!? What does he think all of those BP commercials on his television are all about!</sarcasm>

 

[AndriaD]

Interesting point. Is this the FDA attempting to regulate to the lowest common denominator of Joe Citizen who wants BG to protect him from all the 'evils' of the world? Or just lining the pockets of BP?

I mean, seriously, Joe Citizen shouldn't be allowed to use naturally existing plants and compounds to address his health concerns, should he!? What does he think all of those BP commercials on his television are all about!</sarcasm>

Both, of course. The FDA has this idea that we should be protected from ourselves (which is impossible, and also counter to everything that makes homo sapiens a strong species), AND they want to line BP's pockets. You used to be able to buy plain old "quinine" in the supplement aisle. But some idiots apparently used too much and gave themselves heart attacks or something. Now, to get pure quinine in capsule form, you need a prescription. Or, you can get *trace* amounts of it in some homepathic foot/leg cramp medications, or in tonic water. People have been using quinine for *centuries*, as it comes from the bark of the cinchona tree, but suddenly, it's a drug that needs a prescription. If that's not scratch-my-back-I'll-scratch-yours between FDA and BP, I don't know what it is. I'm surprised aspirin has survived as an OTC drug -- it comes from willow bark!

Andria

 

[retired1]

No, it's not. You're not discussing anything related to intended use, instead choosing to pursue discussion of constitutional interpretation and legal precedent that are far removed from the original topic.

When a member states that free speech should be absolute and the Intended Use violates the 1st Amendment, it is indeed germane to the discussion. Especially when the Intended Use clause is not a violation of the 1st Amendment as the courts view it.

 

[Rossum]

No, it's not. You're not discussing anything related to intended use, instead choosing to pursue discussion of constitutional interpretation and legal precedent that are far removed from the original topic.

Seriously? You're trying to tell a forum Administrator what is and isn't on-topic?

Look at it this way: You have freedom of speech. You can say whatever you want about whatever product you want. Just keep in mind that nothing prevents THEM (the goobermint) from using whatever you say against whomever they please.

 

[curiousJan]

Seriously? You're trying to tell a forum Administrator what is and isn't on-topic?

Look at it this way: You have freedom of speech. You can say whatever you want about whatever product you want. Just keep in mind that nothing prevents THEM (the goobermint) from using whatever you say against whomever they please.

Admins are human just like the rest of us. I fail to see the connection between the "absolute" aspect of the First Amendment and the topic of the original post, my post. I have no problem with a meandering of topic when relevant to the original. Fact is, I just don't see it here.

Keeping the goobermint from taking my words and pointing them at whomever they choose was exactly the underlying point of this thread.

 

[Rossum]

Keeping the goobermint from taking my words and pointing them at whomever they choose was exactly the underlying point of this thread.

In the end, the fact that someone might put your words to use in a manner which you do not like does not infringe on your right to speak or write those words.

 

[curiousJan]

In the end, the fact that someone might put your words to use in a manner which you do not like does not infringe on your right to speak or write those words.

The goverment using my words in a way that makes me not speak or write those words skates very close to infrigement, in my opinion (which counts for naught if a court does not agree.)

 

[Kent C]

Keeping the goobermint from taking my words and pointing them at whomever they choose was exactly the underlying point of this thread.

It's a valid point. One of the reasons for that is speech, vs. actual aggression, does not harm. It may offend, but as Jefferson said (in another context) - "...it neither picks my pocket or breaks my leg." And it should not be used to pick others' pockets either :- )

 

[skoony]

The goverment using my words in a way that makes me not speak or write those words skates very close to infrigement, in my opinion (which counts for naught if a court does not agree.)

I do not understand why you would fear to speak what you will. If company A says their product is used for B and someone
or somebody's say elsewhere the product is actually used for D the Fda is inquiring about discrepency E and whether or
not it is in violation of F.(intended use)
The FDA is not intending nor implying any retribution or offence against you for saying what you said if in fact
its true. It is what it is.
That doesn't change the fact I don't like it either.

Regards
Mike

 

[curiousJan]

I do not understand why you would fear to speak what you will. If company A says their product is used for B and someone
or somebody's say elsewhere the product is actually used for D the Fda is inquiring about discrepency E and whether or
not it is in violation of F.(intended use)
The FDA is not intending nor implying any retribution or offence against you for saying what you said if in fact
its true. It is what it is.
That doesn't change the fact I don't like it either.

Regards
Mike

My concern is my words, or other people's, being used to skirt Judge Leon and classifying our vapes as drug/device combination products because they provide NRT. Boom, banned and delivered with a bow to BP.

 

[AndriaD]

My concern is my words, or other people's, being used to skirt Judge Leon and classifying our vapes as drug/device combination products because they provide NRT. Boom, banned and delivered with a bow to BP.

Exactly this. Because of the FDA's *inference* by what is stated by a customer, it does something to the purveyor, which may not be directed at the person who said whatever, but it DOES affect the person who said whatever, because they're a customer of the purveyor.

They're splitting hairs, for the benefit of tax coffers and BP. For the tax coffers *alone*, I might not have a problem with it, because it does take a huge amount of money to run a gov't as wasteful and spend-thrift as ours -- but for the benefit to BP because of this hair-splitting, I have a HUGE problem, because BP doesn't need any help! They're a MULTI-TRILLION dollar industry in their own right, and need no hair-splitting help!

Andria

 

[YoursTruli]

People often openly state a multitude of different products are good for uses other than their intended purpose, which is why the vast majority of manufactures include disclaimers to counter this and honestly I do not see ecigs as being any different when it comes this. People can make whatever claims they want to, it doesn't make it true or something the manufacturer can be held accountable for especially if the manufacturer specifically states otherwise.

 

[curiousJan]

People often openly state a multitude of different products are good for uses other than their intended purpose, which is why the vast majority of manufactures include disclaimers to counter this and honestly I do not see ecigs as being any different when it comes this. People can make whatever claims they want to, it doesn't make it true or something the manufacturer can be held accountable for especially if the manufacturer specifically states otherwise.

My concern with the proposed changes to intended use is that they could be used to invalidate the disclaimers.

 

[skoony]

My concern is my words, or other people's, being used to skirt Judge Leon and classifying our vapes as drug/device combination products because they provide NRT. Boom, banned and delivered with a bow to BP.

It's my humble opinion the FDA is getting ahead of the curve for the post deeming environment
and all the little sneaky workarounds we have discussed if and or when nic,juice,hardware and
the components that make them can no longer be sold.
I can see your point though. It would be another angle of attack. The problem then becomes
whats left to us after the deeming. If a vendor was selling what the FDA allowed under the new
regs and made no such claims and in fact had disclaimers stating otherwise the FDA would
be very hard pressed in a court of law using second hand utterings as a basis for any regulatory
action against said vendor. I now would lean toward your position. I am still not entirely certain
it would be a 1st Amendment issue but, it would be an issue.

Regards
Mike

 

[YoursTruli]

My concern with the proposed changes to intended use is that they could be used to invalidate the disclaimers.

I just don't see it.