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

[Endor]

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.

tobacco laws, like alcohol laws, are delegated to the states. But lets face it, the federal government has been eroding states rights for years now, especially during the more recent presidential administrations. (No, this is not an attempt to inject partisan politics into the discussion, as both have been guilty of this).

Regarding the underage sale, my guess is that the FDA enlisted an underage buyer to successfully purchase the product. Although on the surface it seems unfair, it is not entrapment per se. Law enforcement does this all the time to root out and prosecute stores that sell tobacco or alcohol to underage people, and even to catch guys soliciting prostitutes. As long as they are careful to not try to deceive somebody into committing a crime they normally wouldn't commit, such as presenting an accurate-looking fake ID to a store owner when asked, there is no entrapment.

Expect this to be a regular occurrence with e-cigarette companies if these deeming regulations pass.

 

[twgbonehead]

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.

That is not quite correct. What they do is send young-looking people (who nonetheless are of legal age) in to attempt to buy the products. (They do this with alcohol, too, both in stores and restaurants). If the store in question does not card the individual, they get into trouble.

The police cannot send those who are ACTUALLY under-age into the stores, since this would be directly inciting them to commit a crime.

 

[AndriaD]

Then the FDA wouldn't be able to enlist an under-aged person to make a purchase, since that is a violation of the law. And the FDA aren't law enforcement anyway, so what the hell are they doing? Trying to be judge, jury, and executioner????

Andria

 

[Nate760]

That is not quite correct. What they do is send young-looking people (who nonetheless are of legal age) in to attempt to buy the products. (They do this with alcohol, too, both in stores and restaurants). If the store in question does not card the individual, they get into trouble.

The police cannot send those who are ACTUALLY under-age into the stores, since this would be directly inciting them to commit a crime.

As I mentioned previously, there's a lot of variance in these laws from state to state. In California, you better believe they send actual underage people into the stores. That's the only way they're allowed to do it.

 

[Bill Godshall]

DrMA inquired

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?

Back in the late 1980's and early 1990's, a group of concerned citizens (including me) began conducting what we called "compliance tests" to see how many retailers would sell cigarettes to minors (that we sent in to buy cigarettes, including some as young as 12 years old). We were shocked to find that 60%-80% of retailers tested in dozens of different cities and states sold cigarettes to the minors (without even asking for ID).

In 1991 we successfully urged US Congress to enact what became known as the "Synar Law", named after now deceased sponsor US Rep. Mike Synar, which required all states to conduct annual compliance checks on tobacco retailers, and required all states to sharply reduce the percentage of retailers who sell cigarettes to minors, or face loss of federal SAMHSA block grant funds.

We also urged many state and local health depts to conduct sting operations on tobacco retailers (which are the same as compliance tests except violators would get fines as well as their names published in newspapers). And the 1996 FDA tobacco regulations (that I assisted then FDA Deputy Commissioner Mitch Zeller develop) were subsequently struck down in 2000 by the SCOTUS) included sting operations on several thousand retailers (before 2000 when the SCOTUS shut them down).

Despite the 2000 SCOTUS ruling (which didn't even cite the FDA's sting operations), the courts have consistently upheld the legality of sting operations on tobacco retailers using undercover youth.

I don't know the answer to DrMA's last question (do companies abroad enjoy 1st Amendment rights of the US Constitution when marketing to customers in the US?). But I do know that all US based companies enjoy protections by the US Constitution. Perhaps that was why the FDA decided to send the letter to a foreign based company.

It would be interesting to see what would happen if the FDA sent a letter to Reynolds similarly claiming that all of Reynolds cigarettes and smokeless tobacco products are "misbranded" because Reynolds website similarly cites scientific evidence about THR at
Reynolds American Inc.
Reynolds American Inc.
Reynolds American Inc.

I suspect Reynolds' lawyers would respond to the FDA with the same or similar legal arguments that I posted on this thread.

The only difference between Reynolds' website and the snuff website FDA sent a letter to is that Reynolds' website doesn't sell tobacco products to customers.

 

[Jman8]

Regarding the underage sale, my guess is that the FDA enlisted an underage buyer to successfully purchase the product. Although on the surface it seems unfair, it is not entrapment per se. Law enforcement does this all the time to root out and prosecute stores that sell tobacco or alcohol to underage people, and even to catch guys soliciting prostitutes. As long as they are careful to not try to deceive somebody into committing a crime they normally wouldn't commit, such as presenting an accurate-looking fake ID to a store owner when asked, there is no entrapment.

Expect this to be a regular occurrence with e-cigarette companies if these deeming regulations pass.

From a link mentioned in OP (on the FDA site):

The public also plays an important role in protecting America’s youth from the dangers of tobacco use. If you suspect a potential violation of our youth access restrictions, you can file a complaint with FDA by filling out a form or calling FDA’s Center for Tobacco Products at 1-877-CTP-1373.

So, could I complain to the FDA that the FDA potentially violated youth access restrictions, and essentially did so knowingly?

I already registered a general complaint with the FDA via my comments whereby I said that by indicating certain flavors may be marketed to youth, they are telling the kids of America that THIS PRODUCT IS FOR YOU.

 

[Jman8]

We also urged many state and local health depts to conduct sting operations on tobacco retailers.

..Unlike..

 

[JimmyDB]

That is not quite correct. What they do is send young-looking people (who nonetheless are of legal age) in to attempt to buy the products. (They do this with alcohol, too, both in stores and restaurants). If the store in question does not card the individual, they get into trouble.

The police cannot send those who are ACTUALLY under-age into the stores, since this would be directly inciting them to commit a crime.

In Michigan, THEY ABSOLUTELY DO SEND IN MINORS. Let's not forget that the law enforcement also 'forgive' snitches for all kinds of drug purchases and sales and all kinds of people for all kinds of things without the person ever being on-record as a witness etc.

In Michigan, I have never even hear of someone 'of-age' being used, and I worked in tobacco for about a decade. At least once a year they would send in a minor, they would fail and generally get 'banned for life' and then we would get a notice and a thank you letter that would be posted on the door. And when I say 'banned for life', that's basically what I mean. If anyone working remembered that you tried to buy while underage etc,. you would be booted and if we got annoyed, we called the cops. A single request to leave being refused is enough for us to push and have the cops go pick someone up from their home etc. Being part of an investigation doesn't preclude you from the reserved rights of others, including business owners and property owners. We were never extra harsh on those that were part of the investigations, mainly because we didn't really have anything harsher than getting banned and/or the cops called on you that was legal I do seem to remember someone threatening to call the cops on one of the minors immediately upon attempted sale.

Creating the opportunity for a crime, isn't inciting a crime, nor is it entrapment. Having someone at the scene of a crime that would have otherwise happened without them specifically being there is 'OK'. I don't exactly like it, but that's the way it is. I always wanted to be able to push and press charges on the minors for attempting to purchase along with as many other possible infractions someone could come up with, but at the end of the day the kids were just a pawn being used and I don't think they deserved the level of punishment that could have come down upon them.

 

[JimmyDB]

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?

That's one specifically for the judge... but my understanding is that the Supreme Court has already granted various rights such as 1st and 5th to non-citizens. Normally, this has only been a concern when the person/entity was within our borders, which was when the rights could otherwise have been violated. I may be going out on a limb here, but in general... if they are 'inalienable' rights, well, then EVERYONE has them and it's not required that you be a citizen or such, but we don't go out of our way to protect the rights of non-citizens, normally. Skip foreign affairs such as change of government etc,.

 

[Nate760]

but my understanding is that the Supreme Court has already granted various rights such as 1st and 5th to non-citizens.

The entire Constitution applies (where applicable) to any person who's physically in US territory. Except enemy saboteurs.