FDA FDA misrepresents FSPTCA, tries to deny tobacco retailer right to truthful political speech

[Bill Godshall]

FDA bullies Scottish online retailer (that posts scientific evidence about THR) for truthfully informing the public and consumers that smokeless snuff products are less hazardous than cigarettes, falsely accuses retailer of violating Section 911(b)(2)(A)(i) of FSPTCA, which prohibits manufacturers of regulated products from making MRTP claims on a label or advertisement (i.e. commercial speech) for a specific product/brand, but doesn’t apply to truthful political speech (by retailers or manufacturers) to educate consumers and the public about the risks and benefits of different categories of tobacco products (including presenting scientific evidence about THR on corporate websites, at conferences, in news articles, op/eds, interviews, debates, hearings, etc.). Sets precedent for FDA to violate 1^st Amendment rights of all tobacco retailers and manufactures, and to deny smokers and the public access to truthful scientific and public health information.
www.mrsnuff.com 9/5/14
https://mrsnuff.com/faq.php (FDA cited truthful statements in FAQ 11 and 14)
https://mrsnuff.com/health.php (FDA cited a truthful statement)
https://mrsnuff.com/HRJ.php (Rodu/Godshall article on THR)
https://mrsnuff.com/ACSH.php (Rodu/Cole article on THR)


Please note that the FDA just sent warning letters to four online retailers in foreign countries (including the one cited above) for violating various FSPTCA clauses. But it is doubtful FDA has legal authority to enforce the FSPTCA against retailers abroad, as otherwise all online retailers could be forced to comply with thousands of conflicting laws enacted by 140 foreign governments.
FDA Issues Warning Letters to Four Online Tobacco Retailers for Selling Regulated Tobacco Products to Minors?
Warning Letters
www.mrsnuff.com 9/5/14
www.snuff.me.uk 9/5/14
az-smokes.com 9/5/14
www.ilovecigarette.com 9/5/14

 

[Nate760]

I've long felt that the single most perverse manifestation of the US government's tobacco control strategy is the presumption (which is directly contradicted by reams of evidence to the contrary) that all forms of tobacco use are just as deadly as cigarette smoking. In terms of the overall negative public health impact that this policy has had in the decades since it was first promulgated, it's not unreasonable to say it might be one of the most injurious lies in human history.

 

[DrMA]

Interesting... How did FDA determine the company sold products to underage persons? If this was a purchase orchestrated by FDA, wouldn't it constitute entrapment? Also, does a foreign entity (physical person or company) even possess 1st Amendment rights?

 

[AndriaD]

Interesting... How did FDA determine the company sold products to underage persons? If this was a purchase orchestrated by FDA, wouldn't it constitute entrapment? Also, does a foreign entity (physical person or company) even possess 1st Amendment rights?

A better question would be, where does the FDA get the everloving GALL to think it has ANY power over non-American companies?

The very NERVE!

Andria

 

[Nate760]

Interesting... How did FDA determine the company sold products to underage persons? If this was a purchase orchestrated by FDA, wouldn't it constitute entrapment? Also, does a foreign entity (physical person or company) even possess 1st Amendment rights?

If you're physically in US territory, and aren't an enemy saboteur, you ostensibly enjoy all the same Constitutional protections a citizen does.

 

[csardaz]

Are they saying then that the whole website is a tobacco advertisement and stuff in the FAQ and informational portions of the site are marketing/commercial as opposed to protected/political? I've seen other allusions to on-site reviews and customer comments being regarded as testimonial advertising so if some customer mentions a fact then it can be considered a health claim. So comments/reviews would basically need to be forbidden for any regulated product - or even some unregulated products as a health claim magically transforms it from an unregulated product into one needing reduced-risk or medical regulation.

 

[Nate760]

Are they saying then that the whole website is a tobacco advertisement and stuff in the FAQ and informational portions of the site are marketing/commercial as opposed to protected/political? I've seen other allusions to on-site reviews and customer comments being regarded as testimonial advertising so if some customer mentions a fact then it can be considered a health claim. So comments/reviews would basically need to be forbidden for any regulated product - or even some unregulated products as a health claim magically transforms it from an unregulated product into one needing reduced-risk or medical regulation.

This is an interesting question, and if it's raised in a hearing room and/or courtroom, the vaping industry might find itself in the position of having to argue that correlation is not causation, even when they know that, in this case, it most certainly is. For example, if a customer testimonial says "I tried such-and-such e-cig and I haven't smoked a cigarette since," the government's lawyers will argue, obviously, that this is a prohibited attempt to portray the product as a smoking cessation device. But the vape company lawyer can just as well say "Our product is marketed and sold as an alternative to smoking. If some of our customers find this alternative sufficiently enjoyable that they prefer it to smoking, and decide to stop doing the latter, that does not constitute a claim of smoking cessation, or of reduced risk."

If it was a comment more along the lines of "I tried everything else to quit smoking, but nothing worked until I bought such-and-such e-cig," then that probably meets the statutory definition of a cessation claim. The vendors just have to walk a fine line in deciding which testimonials to post and not post.

 

[SeniorBoy]

This C and D is quite interesting with respect to https://mrsnuff.com/ so I started some research which is not completed. Disclaimer: I'm retired from geekville but still enjoy these kinds of issues and have direct experience in some aspects. My post will be somewhat circumspect out of respect for ECF and the desire NOT to give folks undesirable ideas.

1. Jurisdiction Issue:

The server which hosts this domain/the HD) is physically located in Provo Utah. The web hosting account.

The site uses a 518 area code which is located in the state of New York

The register is godaddy which is also located in the USA and received a CC of the C and D which is a "hint" so to speak that one of the actions the FDA may try and do is get the site shut down. That's about two clicks of the mouse for Godaddy and presto your site is no longer reachable. Registrars as an industry often ignore a lot of C and Ds and others act quite swiftly. Hard to predict for me. Quite telling for us say two or three years down the road.

2. This text from the FDA letter:

"Sales to Minors Violations

FDA’s investigation of your website, Snuff Store Nasal Snuff Dry Snuff Poschl, revealed that you sold a tobacco product to a minor. Specifically, during our investigation of Snuff Store Nasal Snuff Dry Snuff Poschl, a minor purchased a tobacco product from this website."

Source: www.mrsnuff.com 9/5/14

Externally and without "hacking" into the site their is absolutely no way that the FDA could determine this. Naturally, I don't think the FDA is involved with "hacking" so how the h e xxx !!!XZ can they make this assertion?

A "set up" as others have noted. That's entrapment as others have noted and IMHO, wont fly. A complaint from Mom or Dad? Doubtful but remote and I do mean remotely possible. A former employee? Doubtful and remote. Appears to be a Mom and Pop operation. A subpoena to the shopping cart company for records? Even examining this data won't tell you the true age of the buyer. Kids of all ages sometimes use Mom or Dads CC. The hosting company and or registrar. Not a chance. Either they don't hold that kind of data in the case of godaddy (the registrar) or the hosting company must find the evidence and Ive never seen that occur or any legal trick which requires them to go looking.

EDIT: I just discovered that the physical location of MrSnuff is the UK. This twist of events adds some complexity to the issue. They ship to the USA. Interesting and requires more research. Sorry for any confusion.

While I could certainly be wrong, but given the "probability" issues and the current and prior deplorable actions of the FDA, I suspect a "set up" by the FDA.

 

[WorksForMe]

I guess I'm confused about why a "setup" by the FDA is illegal. Local and state law enforcement have been sending minors into gas stations and convenience stores to buy cigarettes for years. That seems to be legal.

J.R.

 

[SeniorBoy]

I guess I'm confused about why a "setup" by the FDA is illegal. Local and state law enforcement have been sending minors into gas stations and convenience stores to buy cigarettes for years. That seems to be legal.

J.R.

Good point J.R. I'm not an attorney so we can forget any legal opinion from me. The term I used was "entrapment" which based on my limited research seems to be a mixed bag of cases. Some stuck and others were invalidated. Admiitedly, the only source for me is:

Entrapment - Wikipedia, the free encyclopedia

Which has an interesting section on the United States. So for me, we already have a Federal Agency named the FDA which is filled with Desk Murderers, liars, cheaters, bloviaters, and agenda driven "mafia like actions" so I can add to this description "set up artists" weather legal or not. Morally and or ethically challenged to play "nice" in case I offend someone. /lol

 

[Nate760]

I guess I'm confused about why a "setup" by the FDA is illegal. Local and state law enforcement have been sending minors into gas stations and convenience stores to buy cigarettes for years. That seems to be legal.

I'm not exactly sure how it works outside California, but when such operations are conducted here, the people sent into the store to make the purchases have to actually be under 18, and they have to present their real ID showing they're under 18 if/when they're prompted to do so. If they get into using adults pretending to be underage, or fake IDs, or any nonsense like that, the courts regard that as entrapment (and, I would submit, rightly so).

But the more obvious difference is that the agencies conducting those operations are duly enforcing applicable state and local laws. There is not, to my knowledge, any federal statute that establishes a minimum age for tobacco purchases. Moreover, the FDA is not a law enforcement agency and has no police powers. So this is all kind of bizarre on a number of different levels.

 

[DC2]

I've seen other allusions to on-site reviews and customer comments being regarded as testimonial advertising so if some customer mentions a fact then it can be considered a health claim. So comments/reviews would basically need to be forbidden for any regulated product - or even some unregulated products as a health claim magically transforms it from an unregulated product into one needing reduced-risk or medical regulation.

The FDA vs Sottera case (which the FDA lost) indicates that comments and reviews by customers can not be considered health claims.

 

[Nate760]

The FDA vs Sottera case (which the FDA lost) indicates that comments and reviews by customers can not be considered health claims.

It makes a lot of sense when you think about it. Think about all the product advertising you've ever seen that revolves around people saying a product changed their physical health for the better. Then imagine every one of those products having to be registered as a medical device.

 

[Nana Gail]

Question. Did the on line business have a pop up that makes the person visiting the site atest to the fact that they are over 18 years of age? I have shopped on line more than I am allowed (by my husband) to admit,and every Ecig or ejuice site has always made me verify my age by clicking on an I am 18 or older pop up. That protects them from lying juveniles as a lie can not be held against them if the do not have physical evidence of an underage consumer. Is this not the case with this business?

 

[Nate760]

Question. Did the on line business have a pop up that makes the person visiting the site atest to the fact that they are over 18 years of age? I have shopped on line more than I am allowed (by my husband) to admit,and every Ecig or ejuice site has always made me verify my age by clicking on an I am 18 or older pop up. That protects them from lying juveniles as a lie can not be held against them if the do not have physical evidence of an underage consumer. Is this not the case with this business?

That's another good question. I'm not aware of how many online vendors have been convicted for underage sales, but I would have to think it's a vanishingly small number. To be guilty requires that you knowingly and willfully sold the product to a minor, but it's impossible for a minor to buy something online without pretending to be an adult.

 

[DC2]

That's another good question. I'm not aware of how many online vendors have been convicted for underage sales, but I would have to think it's a vanishingly small number. To be guilty requires that you knowingly and willfully sold the product to a minor, but it's impossible for a minor to buy something online without pretending to be an adult.

This only applies to California, but you might want to check out this thread...
http://www.e-cigarette-forum.com/fo...office-going-after-e-cigarette-companies.html

If you want the most relevant information regarding the topic of your post above, you might want to consider skipping to post #54 in that thread.

 

[DC2]

This only applies to California, but you might want to check out this thread...
http://www.e-cigarette-forum.com/fo...office-going-after-e-cigarette-companies.html

If you want the most relevant information regarding the topic of your post above, you might want to consider skipping to post #54 in that thread.

I should add that post #89 is where this particular rubber meets the proverbial road.
But the whole thread is a very informative read.

 

[Kent C]

State Laws on Tobacco Control -- United States, 1998

Purchase, Possession, and Use of Tobacco by Minors

Forty-two states have laws that prohibit minors from purchasing, possessing, or using tobacco products, an increase of eight states (i.e., Alabama, Delaware, Florida, Kentucky, Mississippi, Montana, North Carolina, and Texas) since the 1995 report. Nine states prohibit all three of these provisions; 19 states prohibit two of the three provisions; and 14 states prohibit one of the provisions. The most common restriction is a prohibition on the purchase of tobacco products by minors; 33 states have such a restriction.

------
Iwo, violate a law to catch violators of other laws. Aiding a minor to purchase (say by allowing them to use your credit card for an online purchase), is also against the law in most states.

 

[Nate760]

State Laws on Tobacco Control -- United States, 1998

Purchase, Possession, and Use of Tobacco by Minors

Forty-two states have laws that prohibit minors from purchasing, possessing, or using tobacco products, an increase of eight states (i.e., Alabama, Delaware, Florida, Kentucky, Mississippi, Montana, North Carolina, and Texas) since the 1995 report. Nine states prohibit all three of these provisions; 19 states prohibit two of the three provisions; and 14 states prohibit one of the provisions. The most common restriction is a prohibition on the purchase of tobacco products by minors; 33 states have such a restriction.

------
Iwo, violate a law to catch violators of other laws. Aiding a minor to purchase (say by allowing them to use your credit card for an online purchase), is also against the law in most states.

This brings us also to one of the most profound absurdities in the proposed FDA deeming regulations: they seek to impose federal-level sales restrictions on e-cigs that do not exist for any actual tobacco product. If that's not insanity, nothing is.

 

[Stosh]

I wonder if this case will be fully adjudicated prior to the FDA evaluating and ruling on the Swedish Match application.