FDA E-cig opponents in Congress urge State AGs to lobby for FDA deeming reg/ban & risk their political careers by unlawfully suing e-cig companies under M

[Bill Godshall]

For legal clarification, please note that the MSA was approved by 46 different state courts (and 4 other state courts MS, FL, TX, MN approved slightly different settlements) back in 1997-99, five years before e-cigs were invented.

I've never heard of a State Court approving massive changes in already approved civil lawsuit settlement unless all parties involved in the settlement agree to the proposed changes in the agreement).

In this situation, I'd be shocked if Altria, Reynolds or Lorillard would agree to allow a State AG impose massive marketing restrictions on MarkTen, Vuse or blu, as well as making massive MSA payments to states (that would be based upon the number of e-cigs they sell nationwide, just like cigarettes). These Participating Manufacturers in the MSA almost certainly would challenge (in state court) any State AG who attempted to impose the many different MSA cigarette provisions onto MarkTen, Vuse or blu, and State AGs would almost certainly need to win the litigation in their state court before they could implement their proposed changes to the MSA.

Since the MSA was approved by all state courts before e-cigarettes were invented, I'd be shocked if any State Court would rule that the MSA was intended to apply to e-cigs.

I'd also be shocked if a State Court would rule that e-cigarettes fit the MSA's definition of "cigarette" (below), which is torturous to read.

[QUOTE]“(m) “Cigarette” means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; or (2) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (3) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in clause (1) of this definition.” [/QUOTE]

“(vv) “Tobacco Products” means Cigarettes and smokeless tobacco products.”

E-cigs clearly don't fit cigarette definition alternatives (1) or (3) since they don't "consist of or contain" "any roll of tobacco wrapped".

E-cigs also don't fit cigarette definition alternative (2) because they don't "consist of or contain" "tobacco, in any form", and most importantly because they aren't "likely to be offered to, or purchased by, consumers as a cigarette".

Also, any attempt by a State AG to require other e-cig manufacturers (i.e. force them to become Nonparticipating Manufacturers of the MSA) to create escrow accounts and make payments similar to those made to States by Participating Manufacturers would almost certainly be met with lawsuits by e-cig companies against the AG and/or the State.

Any competent lawyer could point out that it unconstitutional to change the MSA to apply to thousands of entirely different companies that make and market entirely different products than were the original targets of State AG lawsuits in 1997/98.
Besides, e-cigs haven't caused any of state reimbursed healthcare costs, and e-cig companies didn't engage in any target marketing of youth or lying about the harms caused by their products (that cigarette companies did decades ago).


I think Durbin, Waxman and Pallone (and Matt Myers at CTFK, who is likely behind this just as he was in 1997 and 1998 AG settlements, and FDA's 2009 e-cig ban) are fully aware that no State AG is going to try changing their State's MSA to apply to e-cigs, and that the real purpose of this letter was to urge 29 AGs to more aggressively lobby for the FDA deeming reg/ban by further demonizing e-cigs.


For disclosure, from 1994-97 I urged State AGs to sue cigarette companies, in 1997/98 I campaigned to expose and defeat the initially agreed upon Global Settlement (that we called the Global Bailout) in the US Senate, and in 1998/99 I and other health advocates filed a Petition to Intervene in PA's MSA with the Phila Common Pleas Court in 1998 (i.e. we sued the State AG and the Big Tobacco companies to make several changes to the MSA). Although the PA courts approved the PA Settlement, our lawsuit against the AG convinced then Gov. Ridge and the PA legislature to spend all of the MSA money on health services (in sharp contrast to most other states).

 

[Bill Godshall]

For clarification, the FSPTCA is a federal statute enacted by US Congress. It has no legal impact on the MSA, which are 46 different state approved settlements of civil lawsuits.

So the FSPTCA's definition of "tobacco product" or "cigarette" have no legal bearing on the MSA.

 

[Kent C]

Home

Pennsylvania

wiki:

In a speech at the National Tobacco Control Conference, Godshall stated that "[W]ith unprecedented future legal protection granted by the state A.G.'s in exchange for money, it appears that the tobacco industry has emerged from the state lawsuits even more powerful."

An article in the Journal of the National Cancer Institute described the MSA as an "opportunity lost to curb cigarette use", citing public health researchers' views that not enough of the MSA money was being spent on anti-smoking measures.


Robert Levy states:

"For 40 years, tobacco companies had not been held liable for cigarette-related illnesses. Then, beginning in 1994, led by Florida, states across the country sued big tobacco to recover public outlays for medical expenses due to smoking. By changing the law to guarantee they would win in court, the states extorted a quarter-trillion-dollar settlement, which was passed along in higher cigarette prices. Basically, the tobacco companies had money; the states and their hired-gun attorneys wanted money; so the companies paid and the states collected. Then sick smokers got stuck with the bill."

The argument the Master Settlement Agreement created a cartel of the major U.S. cigarette makers, allowing them to charge "supracompetitive" prices for their product, was rejected by the U.S. Court of Appeals for the Ninth Circuit in 2007.

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Here's another case of gov't and do gooders, getting 180 degrees opposite of what was intended. The States did create a cartel, but the gov't lied about the fact that it did.

And now, since the 'structure is in place', some look to applying it to ecigs. The 'structure' was built by making companies, not individuals making personal choices, responsible for their condition, basically 'victimizing' smokers (whom they hated, btw). It is one of the biggest frauds and extortion that has happened in this country. (and that's saying a lot since there have been many).

 

[AndriaD]

And now, since the 'structure is in place', some look to applying it to ecigs. The 'structure' was built by making companies, not individuals making personal choices, responsible for their condition, basically 'victimizing' smokers (whom they hated, btw). It is one of the biggest frauds and extortion that has happened in this country. (and that's saying a lot since there have been many).

Amen, amen, amen. I said it was a crock o' poopoo when I first heard of it, was appalled when it actually flew, and I stand by that now, when its evil is even more clearly visible -- courtesy of those states who sold "tobacco bonds" who now are facing bankruptcy when those bonds tank due to less tobacco buying. Good job, greed. I'd say they deserve that bankruptcy, but I know who's going to end up paying for it -- vapers.

Andria

 

[Bill Godshall]

Regardless of one's views about the MSA (or the State AG lawsuits, or the way States spent their MSA funds), the MSA's cigarette marketing restrictions and MSA payments to states (that are now about $.65/pack) have helped e-cig sales skyrocket since 2008 (as have higher cigarette taxes and smoking bans).

 

[Kent C]

Regardless of one's views about the MSA (or the State AG lawsuits, or the way States spent their MSA funds), the MSA's cigarette marketing restrictions and MSA payments to states (that are now about $.65/pack) have helped e-cig sales skyrocket since 2008 (as have higher cigarette taxes and smoking bans).

Another example of the 'unintended consequences' of gov't action, of which they are now attempting to shut down. If successful, the next unintended consequence will be a black market in ecigs, which could result in less safety and enticing more kids.

 

[Bill Godshall]

Kent wrote:

Another example of the 'unintended consequences' of gov't action,

Don't know what "unintended consequences" Kent is referring to as sharply reducing teen smoking, reimbursing states for healthcare costs to treat smoking diseases, and reducing adult smoking and cigarette consumption were the goals of most of us who urged State AGs to sue cigarettes companies, and by most of use who advocated cigarette tax hikes.

Meanwhile, reducing involuntary exposure to 2nd hand smoke was the goal of most of us who campaigned to enact smokefree workplace laws.

In sum, we achieved our legislative and litigation goals.

But in recent years, tobacco control extremists (who were a minority faction in the anti smoking movement until the past decade) joined forces with Big Pharma and its shills at CTFK, ACS, AHA, ALA to make the tobacco control movement a tobacco/nicotine prohibitionist movement (but they want to keep cigarettes legal and just ban the least hazardous smokefree tobacco/nicotine alternatives).

 

[AndriaD]

they want to keep cigarettes legal and just ban the least hazardous smokefree tobacco/nicotine alternatives.

This just illustrates very clearly that they don't give a flying ratzass about anyone's health, they care about THEIR OWN BOTTOM LINES.

As I've said before... The only reason Big Pharma cares at all about their products helping people is because the more helpful the product, the more they can charge for it. To them, that's IT, all that matters. If they thought there was any money in just poisoning us all outright, they'd do it in a heartbeat. It wouldn't surprise me at all to find there was some noxious poison in all of BP's NRT -- after all, they're for smokers, who "deserve to die". Maybe that's the only reason they make them -- they all thought the nicotine was the noxious poison and all the quitters who used NRT would just die of it. Well, SURPRISE! The products don't work, either for quitting smoking OR for killing people.

Andria

 

[Kent C]

Kent wrote:



Don't know what "unintended consequences" Kent is referring to ....

I don't believe you don't know to what I was referring, since what I quoted and the comment that 'they are now attempting to shut down." Unintended consequences aren't the only consequences. And I think you just took this 'misunderstanding' to list them - which is fine.

But let me be perfectly clear what I meant - the (MSA) "have helped e-cig sales skyrocket since 2008". Ie. a result of making it more costlier to smokers and the demonizations that corralled them into smoking-designated areas, the junk science on second-hand smoke, and other factors led to many going to ecigarette use. Something that the present ANTZ are now trying with all their might to stop, and which some have said is worse than smoking - THAT unintended consequence.... IOW, the anti-smoking positions, including yours and others, that affected every smoker and ex-smoker that posts here.

 

[AndriaD]

You know, as much as I absolutely hated the "smoke-free workplace" crap, I do sort of understand it, especially now that I'm a non-smoker myself. But whoever it was who thought up the "smoke-free campus" idea for hospitals and other places that insist on that, where you can't even smoke in peace in your own vehicle, and everyone who supported that craziness, they need to be stripped naked and whipped publically with barbed-wire every single day until they holler for mercy and agree to fight against that craziness, and then turned loose with no job and no help whatever in anything they may ever do in life, and I hope they die screaming.

Andria

 

[Kent C]

You know, as much as I absolutely hated the "smoke-free workplace" crap, I do sort of understand it, especially now that I'm a non-smoker myself. But whoever it was who thought up the "smoke-free campus" idea for hospitals and other places that insist on that, where you can't even smoke in peace in your own vehicle, and everyone who supported that craziness, they need to be stripped naked and whipped publically with barbed-wire every single day until they holler for mercy and agree to fight against that craziness, and then turned loose with no job and no help whatever in anything they may ever do in life, and I hope they die screaming.

Andria

While I may 'give' that smoke free workplace may have some application with some jobs, the coal and ore docks where I worked was not one of those 'exceptions', yet it was implemented there, and pretty much the same anti-smoking advocates that lobbied for and got many of those 'rules' are the same people responsible for shutting down smoking virtually anywhere and everywhere they can.

Full disclosure and I've mentioned this before many times and others should have implied it by my individual rights advocacy, I was a smokers' rights advocate and supported many organizations - Reason Foundation, Cato Institute and others who are now working on vapers rights but earlier worked for smokers rights as well. I knew of Glantz, Dr. Siegel and others who were ANTZ at that time - during the 90's and early 2000's prior to ecigs, of course. Here's just a sample from a while back - a Reason article by a Cato fellow about smokers' rights:

Show Me the Documents - Reason.com

(just click yes or no on the 'test' to read the whole archived article)

"Why do some advocates stoop to such tactics? Evidently, they believe their exalted ends justify repugnant means. And the shakier their science, the more venomous their invective. Consider Stanton Glantz, the University of California at San Francisco professor who spearheaded the crusade against secondhand smoke in California. In a 1995 appearance on ABC radio, he objected to published research questioning the harmful effects of secondhand smoke, charging its author with "aiding and abetting...efforts to kill people." Nevermind that the author, Dr. Julian Lee, is a distinguished thoracic physician who has publicly supported smoke-free workplaces and vigorously condemned the tobacco industry. Lee apparently crossed the line when he stated, "To achieve...a smoke-free society, it isn't necessary to invoke junk science.""

"Ad hominem assaults have become an indispensable tool for the perversion of scientific evidence by political activists--especially, it seems, among tobacco's foes. Anti-smoking activists like Glantz have too often been willing to sacrifice science to politics, with little regard for truth. I recently experienced an illuminating example of such misplaced zeal.

It started with an article by Dr. Michael Siegel, a professor at the Boston University School of Public Health and at the time a board member of Americans for Nonsmokers' Rights (ANR), the California activist group that Glantz co-founded.
...
"Siegel advised fellow scientists in the anti-tobacco movement: "Do not get into arguments with the industry about the scientific evidence. This is exactly what the industry wants. It wants to draw public health practitioners into a debate....Instead, the best approach is to expose the tobacco industry ties of the so-called scientists making the arguments.""

Now, you have seen me praise, Bill's, Carl's, Siegel's, Brad's et al. work with ecigs and their attack on some of their earlier 'collegues' we now call ANTZ. The praise is honest, sincere, and specific. I knew who they were, before any of them knew me. And as they are on the opposite side of Glantz and co. now, I was on the opposite side of all of them, then. But join the THR group now (but not on all issues). Although I think you'll find my rights position consistent in both cases, or in any case where individuals harm no one but perhaps, themselves. That's just the reality of the situation.

 

[AndriaD]

While I may 'give' that smoke free workplace may have some application with some jobs, the coal and ore docks where I worked was not one of those 'exceptions', yet it was implemented there, and pretty much the same anti-smoking advocates that lobbied for and got many of those 'rules' are the same people responsible for shutting down smoking virtually anywhere and everywhere they can.

Full disclosure and I've mentioned this before many times and others should have implied it by my individual rights advocacy, I was a smokers' rights advocate and supported many organizations - Reason Foundation, Cato Institute and others who are now working on vapers rights but earlier worked for smokers rights as well. I knew of Glantz, Dr. Siegel and others who were ANTZ at that time - during the 90's and early 2000's prior to ecigs, of course. Here's just a sample from a while back - a Reason article by a Cato fellow about smokers' rights:

Show Me the Documents - Reason.com

(just click yes or no on the 'test' to read the whole archived article)

"Why do some advocates stoop to such tactics? Evidently, they believe their exalted ends justify repugnant means. And the shakier their science, the more venomous their invective. Consider Stanton Glantz, the University of California at San Francisco professor who spearheaded the crusade against secondhand smoke in California. In a 1995 appearance on ABC radio, he objected to published research questioning the harmful effects of secondhand smoke, charging its author with "aiding and abetting...efforts to kill people." Nevermind that the author, Dr. Julian Lee, is a distinguished thoracic physician who has publicly supported smoke-free workplaces and vigorously condemned the tobacco industry. Lee apparently crossed the line when he stated, "To achieve...a smoke-free society, it isn't necessary to invoke junk science.""

"Ad hominem assaults have become an indispensable tool for the perversion of scientific evidence by political activists--especially, it seems, among tobacco's foes. Anti-smoking activists like Glantz have too often been willing to sacrifice science to politics, with little regard for truth. I recently experienced an illuminating example of such misplaced zeal.

It started with an article by Dr. Michael Siegel, a professor at the Boston University School of Public Health and at the time a board member of Americans for Nonsmokers' Rights (ANR), the California activist group that Glantz co-founded.
...
"Siegel advised fellow scientists in the anti-tobacco movement: "Do not get into arguments with the industry about the scientific evidence. This is exactly what the industry wants. It wants to draw public health practitioners into a debate....Instead, the best approach is to expose the tobacco industry ties of the so-called scientists making the arguments.""

Now, you have seen me praise, Bill's, Carl's, Siegel's, Brad's et al. work with ecigs and their attack on some of their earlier 'collegues' we now call ANTZ. The praise is honest, sincere, and specific. I knew who they were, before any of them knew me. And as they are on the opposite side with Glantz and co. now, I was on the opposite side of all of them, then. But join the THR group now (but not on all issues). Although I think you'll find my rights position consistent in both cases, or in any case where individuals harm no one but perhaps, themselves. That's just the reality of the situation.

I just know that I am about damn tired of non-smokers/non-vapers having ALL the rights, while they (the ANTZ) strip me of every conceivable right they can think of, in their brainless, tireless, ruthless crusade. It's time to put THEM in their place -- out to pasture, without a pot to pee in. And I still hope they die screaming.

Andria

 

[Kent C]

I just know that I am about damn tired of non-smokers/non-vapers having ALL the rights, while they (the ANTZ) strip me of every conceivable right they can think of, in their brainless, tireless, ruthless crusade. It's time to put THEM in their place -- out to pasture, without a pot to pee in. And I still hope they die screaming.

Andria

I hear ya. I'd just like to see them lose their gov't grants. (and their tenure - as long as I'm dreaming) lol. That would also produce the screams....

Happy Holidays to you Andria

 

[AndriaD]

I hear ya. I'd just like to see them lose their gov't grants. (and their tenure - as long as I'm dreaming) lol. That would also produce the screams....

Happy Holidays to you Andria

To you too!

But those aren't the kinds of screams I mean. I want them in AGONY, the same agony they produced in millions of smokers. And hey, after all this lovey-dovey care of their prissy little lungs, they should have PLENTY of lung power for AGONIZED screaming! I mean, douse them with gasoline and set them on fire!

THAT would give me a very merry hoho.

Andria

 

[Cool_Breeze]

You know, as much as I absolutely hated the "smoke-free workplace" crap, I do sort of understand it, especially now that I'm a non-smoker myself. But whoever it was who thought up the "smoke-free campus" idea for hospitals and other places that insist on that, where you can't even smoke in peace in your own vehicle, and everyone who supported that craziness, they need to be stripped naked and whipped publically with barbed-wire every single day until they holler for mercy and agree to fight against that craziness, and then turned loose with no job and no help whatever in anything they may ever do in life, and I hope they die screaming.

Andria

it all started with the Clinton administration.

 

[Jman8]

Well, this thread certainly took an unexpected turn. And not sure if it stayed on topic.

Then again, I feel I have as much of a chance persuading a state AG on merits of eCigs as I do have persuading the likes of BG on the fact that passive smoking is not nearly as harmful/dangerous as he, and many others, are convinced. I've learned that scientific evidence and reasoned arguments tend not to work well with the anti-types.

 

[Kent C]

Well, this thread certainly took an unexpected turn. And not sure if it stayed on topic.

Still about how the MSA might apply to ecigs but more about how we got to this point.

 

[philoshop]

When the process of governance is morphed into the process of rule I have a problem, regardless of who wants to rule or their reasoning behind it.

 

[Bill Godshall]

Kent wrote

But let me be perfectly clear what I meant - the (MSA) "have helped e-cig sales skyrocket since 2008"

Thanks for the clarification, as I've long considered skyrocketing e-cig sales to be an unintended "benefit", not "consequence", of the MSA, cig tax hikes and smokefree workplace laws).


Kent also wrote:

I knew who they were, before any of them knew me.

Except that none of us knew who you were. And I'm probably the only smokefree campaigner who now somewhat knows you (due to correspondences on ECF).

 

[Bill Godshall]

Jman wrote:

Then again, I feel I have as much of a chance persuading a state AG on merits of eCigs as I do have persuading the likes of BG on the fact that passive smoking is not nearly as harmful/dangerous as he, and many others, are convinced.

While I'd be surprised if any of the 29 State AGs (who received letters from Durbin, Waxman and Pallone) will take legal action to change the MSA (to include e-cigs), this is a golden opportunity for concerned vapers and vendors to communicate with their State AG and their members of Congress about their experience with e-cigs, and to expose the false fear mongering claims made by Durbin, Waxman, Pallone and the FDA about e-cigs.

Seems like every time I post a note on ECF urging folks to engage in advocacy to help keep e-cigs legal and affordable to make/sell/use, Jman, Kent and/or other "right to smoke" ideologues discourage vapers from engaging in that activism (by changing the ECF thread's subject to criticize me and other smokefree activists).