This is one reason why the FDA dragging their feet and keep pushing back the date for issuing a deeming regulation. If they lose another lawsuit, they may never be able to regulate ecigs.
Dr. Bertollini of the WHO on twitter - my response
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This is one reason why the FDA dragging their feet and keep pushing back the date for issuing a deeming regulation. If they lose another lawsuit, they may never be able to regulate ecigs.
Pondering this, the first thing that jumps to mind is class-action lawsuit. Bet there are plenty of hungry lawyers out there (no disrespect intended!) who'd love to take something like this on contingency.
Who would the class be? Would it be the vendors? Under what theory of recovery would they prevail?
Sorry, I wasn't clear, was I? Here's how I should have put it: If the FDA institutes (not proposes, but actually puts into force) regulations that effectively ban ecigs as they exist today (for example, limited nicotine content to ineffectively low levels or requiring unreasonable licensing rules for vendors) or that effectively prohibit vapers from acquiring ecigs, I could see a class-action suit on behalf of those vapers, asking the court to force FDA to rescind the regs. As to "theory of recovery," I don't know. Any suggestions?
Am not up on the technicalities of class-action suits, but I'm not sure that would be the appropriate path for vendors to take. Maybe someone more familiar with the law could chime in here.
I would be willing to be part of a class action lawsuit. CASAA members are numerous.
Theory of recovery.....hmmm not sure what this means but if taken by each word, say they take vaping away from me, I will more than likely go back to smoking. Do they then have the obligation to pay for my subsequent doctor bills since I will probably end up with bronchitis each and every year? Pay for the device that is now useless?
Just thoughts. I'm not a lawyer and I don't know how the lawyer talk is interpreted.
Theory of recovery.....hmmm not sure what this means but if taken by each word, say they take vaping away from me, I will more than likely go back to smoking. Do they then have the obligation to pay for my subsequent doctor bills since I will probably end up with bronchitis each and every year? Pay for the device that is now useless?
Just thoughts. I'm not a lawyer and I don't know how the lawyer talk is interpreted.
theory of recovery means that you'd have to prove real damages, they couldn't be hypothetical damages of something that may happen in the future but what damages you actually sustained...
perhaps a case for future damages could be made but it's tricky business and courts really don't allow those unless you have some obvious future damage like lost future wage earning capactiy
maybe you could prove up that you are having to pay for your nicotine at a higher rate
all of these things though aren't going to matter
the fda and any governmental bureaucracy are by law, more or less immune to injury lawsuits, especially in their official capacities as rule or regulations makers
they'd file a motion for summary judgment and ask a judge to throw it out based on their statutory immunity
what can be litigated though is whether e-cigs are a tobacco product..the devices obviously are not, so it seems to me that they can only regulate the liquid
the juice is clearly a tobacco product though and i dont see how the vaping interests can prove it otherwise
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