FDA Does Intended Use violate the First Amendment?

[curiousJan]

Sorry, I'm not going to take the time to find the posts I mention. Pretty much done with discussing this with you.

Interesting approach ... you have 23,920 posts. Exactly how am I supposed to sort through them to find the "few posts" to which you are referring?

I found this article:

FDA Now Censoring Consumer Free Speech on the Internet

But these incidents also include action by the company in question. [Note I am not stating that I agree with the FDA, only that there was a predicate action by the company upon which the FDA based its claim.]

I still see a definitive difference between then and the proposed broadening of intended use.

But you go ahead and take your ball and go home.

 

[Kent C]

TVECA post table of contents for Deeming Final Rule

Mainly the 1st (zoidman's post) and 3rd (mine) links, in that post.

 

[Jman8]

So the whole point of FSPTCA advertising restrictions on tobacco product companies is to prevent marketing to minors, yes? Online vendors of ENDS products already, or should, restrict site visitors by age. Therefore the on-site advertising is moot, as are any customer testimonials.

Agreed in principle. But just like ANTZ target stores to see if they will sell to minors, they could easily target these sites to see if they would allow someone who is a minor. Then make a big deal out of how easy it is for minors to access the site, and an even bigger deal on how these products are marketed towards kids. That's the short version of how that would go down. I'd expect a study (or ten) during this to show that minors access online sites regarding vaping as high as 12% (or whatever number). I'd expect ANTZ to lambast site owners/admins as people who knowingly are allowing kids in, and who are part of a 'ring' to get kids hooked onto eCigs.

My comments and reviews submitted to a vendor regarding a product offered for sale are protected speech, in my opinion. I've not been paid or provided any form of compensation for my input. It is mine to give or not based upon my own free choice. This is especially true for for forum participation or any statements made via social media platforms which could also be used by the FDA to determine "intended use."

This isn't about how well liked products are, this is about whether or not products are successful for a subset of users at keeping said users off of cigarettes. It is about the effects of staying off cigarettes on users' health. Those statements are the ones that the FDA intends to use against the manufacturers and vendors of products.

Agree with all this. It is your speech, and in a sense it is protected. But for vendor to use that in marketing of products wouldn't take anything away from you UNLESS you were paid to have your comments/likeness be shared on their site (as you could lose that money if site is nailed). If not paid, and site is nailed, you are free to do whatever you wish with those comments. But if vendor uses it in marketing their product, then it would run up against FSPTCA. It'd likely be FDA just asks for it to be removed, unless ANTZ is involved and making bigger to do out of it than what average person would even consider (being a problem).

So, I see testimonials being gone from vendor sites. On blogs and forums, it'll be tricky, especially if those sites are accepting money / sponsors to sell those same products. If not set up that way, then I don't see what they (FDA) could do, but do see what ANTZ might do as the propaganda war will certainly go up a notch, once FDA deeming is behind us.

 

[AndriaD]

I'd expect a study (or ten) during this to show that minors access online sites regarding vaping as high as 12% (or whatever number). I'd expect ANTZ to lambast site owners/admins as people who knowingly are allowing kids in, and who are part of a 'ring' to get kids hooked onto eCigs.

They seem to totally overlook and ignore the fact that it's very easy to lie to a website. Of course, if they DO take it into account, well then it's time for the "no online sales" propaganda war and eventually laws.

Just because the ANTZ are exactly the sort described as the kind who could screw up a wetdream. They just can't tolerate the idea that someone might want to do something that THEY wouldn't do; anyone who does want to do things that the ANTZ wouldn't do, are just wrong, baaaaaaaad, EVIL.

Why do we tolerate people like this at all, nevermind let them run anything???

Andria

 

[curiousJan]

TVECA post table of contents for Deeming Final Rule

Mainly the 1st (zoidman's post) and 3rd (mine) links, in that post.

Thank you. I had read all of those, and that is exactly to what I was referring with this post.

I don't understand how the FDA thinks the proposed changes to Intended Use can withstand a Constitutional challenge when users' comments are not part of marketing material produced by the company in question.

Our politics may be vastly different, but our viewpoint on this matter is very much in sync.

 

[englishmick]

I found this article:

FDA Now Censoring Consumer Free Speech on the Internet

But these incidents also include action by the company in question. [Note I am not stating that I agree with the FDA, only that there was a predicate action by the company upon which the FDA based its claim.]

I still see a definitive difference between then and the proposed broadening of intended use.

If you're right that this current FDA argument on intended use involves new legal theory, which seems to be the case, then they will have a struggle implementing it. Doesn't mean they will fail, but they will have to establish its legitimacy in court.

It opens the door to ridiculous stuff. Like I put up a blog saying that the purpose of your product is to get kids hooked on nicotine and prime them for a life of smoking, the FDA is allowed to put my statement on the scales, with a degree of weight to be decided by them.

 

[Jman8]

Thank you. I had read all of those, and that is exactly to what I was referring with this post.

I don't understand how the FDA thinks the proposed changes to Intended Use can withstand a Constitutional challenge when users' comments are not part of marketing material produced by the company in question.

It is part of marketing material if it is on their company website.

Otherwise, what's to stop any company from making those up and positioning them in a way to market / sell in ways that would counter FSPTCA?

Vaping industry (and to teeny tiny degree consumers) have already been shut down from marketing eCigs as cessation products. Consumers can brag all they want about using eCigs to quit smoking, but if a vaping vendor site posted those type of testimonies, it would be seen as marketing. Otherwise, they'd all be posting testimonials that say that. IMO, they clearly don't need to. Word of mouth does the trick better than testimonies would. I say that cause (die hard) smokers are going to listen to personal story from person they know more than some testimony from person they don't know. And on vaping forum, like this, if consumer (I don't really know) describes their 5 pack a day habit and how they were able to stop smoking via vaping, I (and I think everyone that smokes, or smoked, less than 5 packs a day) will sit up on take notice. As a testimonial on a site, I'd have trouble believing that. I'd want to engage with such a person, and forum allows for that.

Just to be abundantly clear, I very much wish for user comments / testimonials to be allowed on vendor sites. I just don't see how it's possible given language in FSPTCA. I'd prefer that be defeated and if it meant cigarette brands could post testimonials on their site, I'd be very okay with that. Even something along lines of, "I've been smoking this brand for 80 years now, and find it very satisfying. Now, I'm off to train for a marathon." That would be great testimonial in my book.

 

[curiousJan]

It is part of marketing material if it is on their company website.

On vendor websites, customer reviews of products are not marketing material, in my honest opinion ... but others might disagree.

Otherwise, what's to stop any company from making those up and positioning them in a way to market / sell

<Gasp> Companies would never do something like that! </sarcasm>

Sorry, but fraudulent advertising is just that no matter what industry is in discussion.

 

[Jman8]

On vendor websites, customer reviews of products are not marketing material, in my honest opinion ... but others might disagree.

EVERYTHING on a vendor website is marketing material. Perhaps only exception would be site map, site design info, and legal info.

For it not to be seen that way (in my mind) they'd have to fully allow all negative reviews. And then what would stop ANTZ/anti-vapers from posting stuff like, "I used this product and spent 10 hours in emergency room. Never use these products!"

<Gasp> Companies would never do something like that! </sarcasm>

Sorry, but fraudulent advertising is just that no matter what industry is in discussion.

I would consider it an art to present testimonies in such a way that no one could detect if they are fraudulent. I'm certain it could be done.

Would be just a whole lot easier to have say a Facebook page or blog titled, "the unofficial reviews of this company's products" and allow things to be said there. Probably would be more effective cause while ANTZ would likely be poking at that type of site/page forever, they'd probably wouldn't make much headway unless everyone involved in the site were new to web development. And company would benefit greatly from what is likely a whole bunch of free advertising. Company wins. Consumers win. ANTZ stay the losers they are.

 

[curiousJan]

EVERYTHING on a vendor website is marketing material. Perhaps only exception would be site map, site design info, and legal info.

For it not to be seen that way (in my mind) they'd have to fully allow all negative reviews. And then what would stop ANTZ/anti-vapers from posting stuff like, "I used this product and spent 10 hours in emergency room. Never use these products!"

I've seen negative reviews, and I have a greater appreciation for vendor sites when it is obvious that they do not censor reviews.

Verified purchaser status would be a step in the right direction to stop obvious propaganda review attempts.

I would consider it an art to present testimonies in such a way that no one could detect if they are fraudulent. I'm certain it could be done.

The art of deception? I know it can be done. I find it to be unethical and unconscionable.

Would be just a whole lot easier to have say a Facebook page or blog titled, "the unofficial reviews of this company's products" and allow things to be said there. Probably would be more effective cause while ANTZ would likely be poking at that type of site/page forever, they'd probably wouldn't make much headway unless everyone involved in the site were new to web development. And company would benefit greatly from what is likely a whole bunch of free advertising. Company wins. Consumers win. ANTZ stay the losers they are.

I don't see how that would work at all.

 

[AndriaD]

I've seen negative reviews, and I have a greater appreciation for vendor sites when it is obvious that they do not censor reviews.

ROFL!! I placed a lot more trust in the reviews of the first ejuice I used, MFS' Virginia, as actually tasting like Virginia Slims cigarettes, due to one review that said it tasted like cat pee. Though I did wonder how that reviewer knew that.

Andria

 

[aikanae1]

I've seen negative reviews, and I have a greater appreciation for vendor sites when it is obvious that they do not censor reviews.

Verified purchaser status would be a step in the right direction to stop obvious propaganda review attempts.

The art of deception? I know it can be done. I find it to be unethical and unconscionable.

From my understanding, testimonial and reviews are not the same. I don't think there is a way to figure out what the FDA intends without seeing the actual ruling, how those words are defined. I doubt they will be interchangable. We just don't know yet.

I wondered if the SBA has made any other comments because one of their prior complaints was that there was too much left undetermined, unwritten and undefined, then cited a number of regulations and procedures including some passed by congress, that were being violated. I thought they raised some interesting points but I don't know how enforceable they were. That's the goofy thing with regulations is they don't always have a penalty or enforcement for them.



The Federal Trade Commission (FTC) found that in US businesses, an alarming number of testimonials were in fact fictitious and misleading. In December 2009, they introduced a new set of rules governing testimonials.[8] In essence, it is now illegal to use testimonials that "...mislead consumers and affect consumers' behavior or decisions about the product or service." Wikipedia Testimonial - Wikipedia, the free encyclopedia

 

[Jman8]

I've seen negative reviews, and I have a greater appreciation for vendor sites when it is obvious that they do not censor reviews.

Verified purchaser status would be a step in the right direction to stop obvious propaganda review attempts.



I don't see how that would work at all.

In response to all of what you've responded with (minus the art of deception stuff), I think it will matter only after deeming. I doubt FDA goes after testimonials as something they seek to curtail within first few weeks or months of deeming, but do think some vendors will take it upon themselves to remove it, just cause they don't wish to tempt fate.

Perhaps more importantly, it is yet to be known how many vendors survive. I would think FDA will allow business as usual for 18 months and during that time, we'll see vending sites go from whatever number it is now, down to less than 100. After 18 months, then those surviving are likely to have legal team that will know what is allowed on their site and what isn't.

If predictions of 99.99% of products will be gone from legal market, then the .01% of stuff available will likely not need testimonials. I don't know, and hope they are done, even as a 'screw you FDA' type thing. Reviews on the other hand could be allowed, but I could see it being tricky and something that certain vendors just stay away from, letting review sites take care of for them.

 

[Katya]

There's a pattern forming

If predictions of 99.99% of products will be gone from legal market, then the .01% of stuff available will likely not need testimonials.

Please read SJ's post if you haven't already...

In April 2013 I attended the first "e-cigarette workshop" held at the European Parliament in Brussels. The purpose of the workshop was to inform Parliamentarians about e-cigarettes, and to discuss their inclusion in the Tobacco Products Directive.

What I saw there made me sick to my stomach. We (and especially, the parliamentarians) were subjected, for a number of hours, to the opinions of a group of people who had no knowledge or understanding of vaping products. These individuals sat confidently opining that e-cigs were a huge threat to public health and must be regulated like medicines or banned outright. The only saving grace was the presence of Jean-Francois Etter, a man who calmly and politely stated that everything he had heard from his fellow-contributors was unscientific and based on nothing but here-say.

At the conclusion of the event, Prof Etter and I conversed in astonished terms about what we'd just witnessed.

I said to Prof Etter: "what we need is a proper conference where all the issues can be hammered out publicly, without rancour, without bias, and with all sides of the debate represented." He agreed, and I set home determined to put the plan into action.

Thankfully, soon I was introduced to Amanda Strange, professional conference producer, and we embarked on 6 of the hardest months of our lives putting the event on - but that's another story for another day.

I will be posting the videos from this year's event shortly (they are currently being edited), and I invite you to spend some time watching them.

The first conference changed the landscape of the debate around e-cigarettes in the UK, and I'm immensely grateful to all the participants for their involvement.

One thing is clear to me, however: it was all too late. By the time the 2013 conference took place, the tobacco products directive was already close to being finalised, and it now comes into force in May 2016, and with it ends the golden age of vaping in the EU.

My American friends, you still have hope - please join CASAA, please make yourself heard, and please ensure that the FDA does not kill the greatest thing that's ever happened to smokers, and for which many of us have devoted our lives to creating the last 8 years.

Oliver

"My American friends, you still have hope - please join CASAA, please make yourself heard, and please ensure that the FDA does not kill the greatest thing that's ever happened to smokers, and for which many of us have devoted our lives to creating the last 8 years.

Oliver"

 

[retired1]

People, this is an e-cigarette forum. Let's keep the political conjecture and rhetoric out of it please. This isn't the forum for such things.

 

[Kent C]

Just to be clear - the example I gave of a government agency - the US Senate - was another example of stifling speech in the same manner that the FDA proposes using comments by either vendors or consumers as defining 'intended use'. Where comments made, are not in agreement with gov't policies. There was no intent of making it a political issue - only that such stifling is a violation of the first amendment, which is what the subject title suggests. In order to 'answer' the question, one can give other examples where it has been the case and therefore suggests that a pattern exists where one could assume that this is what the FDA intends with regards to ecigarettes.

I also pointed to instances that we all here have experienced in having comments deleted in comment sections of the articles written, and the fact that the pro-ecig position - Bill G, CASAA, Greg, et al., gets shut down in FDA and other seminars where actual discussion is stifled.

That someone took one line in the example and attempted to make a political point, was no part of my intent - which was only to show that violation of the first amendment has been used in the past and tends to validate what the OP's title suggests.

 

[curiousJan]

I don't see the proposed changes to intended use as stifling, more of a twisting to use to suit the FDA's purpose. Is there the potential for self-censoring so that our words are not used against companies and products that are important to us? Sure. And that is a huge problem.

I think the FDA is drooling to use customer reviews and testimonials against the companies and products in question, because companies are well aware, in general, of what they can and can't say to stay out of the cross hairs of the FDA. The agency lacks ammunition in many instances and is looking for another avenue to achieve their intent.

This post was never about politics. My intent was to discuss a possible legal fight that we as consumers could pursue to fight this idiocracy.

 

[AndriaD]

I'm just wondering how it's possible to discuss a political fight (the deeming) without discussing politics. E-cigs don't exist in a vacuum.

Andria

 

[curiousJan]

I'm just wondering how it's possible to discuss a political fight (the deeming) without discussing politics. E-cigs don't exist in a vacuum.

Andria

Agreed. There is a limit to how far we need to venture from the topic at hand, but politics plays in the issues we are discussing. I will say that I don't believe that R this and D that is productive at all. There are allies and adversaries everywhere. The people on both sides of the aisle that we need to be targetting are the ignorant. Information and knowledge is power. If we can educate, we can make great strides (discounting those that truly are ruled by the almighty $$.)

 

[Jman8]

This post was never about politics. My intent was to discuss a possible legal fight that we as consumers could pursue to fight this idiocracy.

IMO, the legal fight to pursue is for each of us to take up our own website that promotes vaping in way we are most comfortable with. If relying on our comments on a forum or vending site, then those administrators may have different priorities which could amount to: had to remove your comments (all consumer comments) to comply with what my attorneys say will keep me out of legal trouble.

If we have our own sites, we become admins of that site. Best if using own servers, and if not marketing eCigs products in our messages. Then we'll have something at stake in the fight, and to get us to shut that down would be a challenge. Not too challenging if it is a few dozen of us, as all they'd have to do is take down 10 of the most popular to send a message. More challenging if there's a few thousand of us, none of whom really care about lots of site traffic and do care that messages are shared in effort to overcome what is likely zealous / overreaching regulations.

All this is in vein of worst case scenario, and likely not necessary to go in this direction within 18 months of deeming. I anticipate ECF and other sites being around for a long time to come, but hard to say how ANTZ will proceed once the deeming comes about. I say we ought to be preparing in a whole other way besides stockpiling goods.