FDA Sued Over Electronic Cigarette Embargo

[Kendra]

But that's the question before the court.

Is this an unaproved drug. It seems to me that unless the court has already decided that this is indeed the case, and I find it unlikely that the court would make such a finding. Then it is likely that a temporary injunction will be issued.

In a lot of ways it comes down to the individual judge but considering the case as a whole in context with the upcoming regulation that would change the game I suspect that the judge would likely grant the temporary relief while the case is argued.

This is not a cut and dried issue as if the company were selling a controlled substance such as marijuana or ........

The FDA asserted a power and someone with financial means pushed back. I suspect considering the sums involved that SE's lawyers think they have a reasonable chance of success.

Now maybe SE is just seeking the temp releif so they can liquidate their remaining stock in advance of regulatory action this is entirely plausible. But that doesn't mean that their counsel doesn't think they have a reasonable chance of winning.

Actually, this isn't the question before the court, though it should be. SE's argument has nothing to do with nicotine . . . they barely mention it at all. They talk about tobacco and keep comparing it with tobacco and tobacco products.

They only ONCE mention the nicotine and it's in a quick statement about the make-up of the e-cig. I think this is a big mistake on SE's part since the FDA will immediately make that argument. What SE SHOULD have done, I think, is tackle this as a twofold issue-- one being the actual device of the e-cig battery and atomizer and even maybe an empty cartridge and the other as the nicotine. .. and try to argue that nicotine has been used without any ill-effects for years and years and that it's the carcinogens and tar from tobacco products that the FDA should be worried about.

JMO. . . I really don't know anything at all.

 

[Ivisi]

Dogs and fleas and lying down. I haven't read a single word in favour of Smoking Everywhere outside this thread. Nothing they do helps us, or is meant to. Winding back six months or so, there was a discussion about the pros and cons of e-cig availability in stores, I was in favour of it, and I was wrong. Small merchants like Bob's tobacco shop? Fine. Corporate-level franchise outlets? Well, here we are...

Emp

It's my feeling looking at most of the posts in the past about SE (and granted, I may be 'new' here, but I read a WHOLE lot before I joined up) is that most people wouldn't have a problem with SE, or any other large corporation selling e-cigs in storefront/kiosk settings, if they were more honest in their sales pitch and advertising. Most of the animosity towards SE involves their claims and marketing rather than their product or pricing. And I would absolutely love to run up the street to buy a spare atty as opposed to ordering one in from China.

Ivisi

 

[Kate]

This is one of the main threads about Smoking Everywhere - http://www.e-cigarette-forum.com/forum/new-members-forum/4791-got-suckered-smoking-everywhere.html

Their products come from China just like everybody elses.

 

[OutWest]

What if, in order to get supplies moving for now vaping products get defined as tobacco products, is that a good thing?

I could be wrong, but from my understanding a judgement in favor of SE wouldnt mean defining the e-cig as a tobacco product, at least not as far as other agencies are concerned. It would simply mean that the FDA has to consider it to be on equal footing.

Now, if the Waxman bill passes, that changes things, but in the interim (or if it doesnt pass) the FDA would be forced by court order to see it on equal footing but the ATF wouldnt necessarily do so, nor would other agencies.

That being said, it would set a legal precendence for the courts to be able to consider it to be a tobacco product.

@all - feel free to correct me if i'm wrong

 

[Slea]

I'll be frank from an American legal standpoint being classified as a tobacco product is the only hope these devices have now that they are on the radar.

They are going to be regulated that's a fact. The only question is how they will be regulated will they fall under the less stringent requirements placed on tobacco or will they end up under the far more draconian drug classification.

Exactly. I've been trying to think of how to explain this all AM.

IMO (which is not humble), we DO want these classified as tobacco products. For one thing, as "drugs" we won't see them again for another 15 years, if at all.

Laws about tobacco are weird, that's for sure, but they are generally weird in favor of keeping smoking products *in* the market.

 

[westcoast2]

Laws about tobacco are weird, that's for sure, but they are generally weird in favor of keeping smoking products *in* the market.

And in the EU keeping smokeless tobacco products *out* e.g snus

edit: Which may help to explain some of the differences in opinion.

 

[katink]

I'v tried to read up a bit on this judge. He looks to be a man with courage, not afraid to face government-wrath (look at his Guantanamo-actions and his Katrina-actions for instance). He seems capable of empathy when discerning if something is important for people or not.

Lets go from there.

Sun, I think, is totally right that a. we need to let the judge know how important the e-cig is to us and all our alikes. Important as in matter of life or death. We NEED to get that across, I think. And b. we need to give counterweight where we can to the anti's that will be sending in their letters.

Why wouldn't it be possible to write to the judge; to convey to him just how important this case could be for us; AND also tell him of our unsureness as to this being a tobacco-product (that we think it isn't in fact) - but that, seeing government is letting itself be led by the nose by tobacco/Philip Morris and is not going to make a seperate category for harm reduction AS IT SHOULD BE DOING - that this leaves us with no options, but that still our devices and liquid need to be saved in order to save ten-thousends or hundreds-thousands lives - that we therefore are writing these letters anyhow, trusting or hoping that justice can instead be done by judges in this case... ?

Perhaps this would be an inbetween-option that gets across what needs to get across; but does not put us on the (tobacco-)side of SE in the process?

 

[Kate]

That sounds to me like a very reasonable way to support vaping, honesty and enthusiasm for justice rather than spin and deceit that SE might encourage.

 

[esmok-e]

I'v tried to read up a bit on this judge. He looks to be a man with courage, not afraid to face government-wrath (look at his Guantanamo-actions and his Katrina-actions for instance). He seems capable of empathy when discerning if something is important for people or not.

Lets go from there.

Sun, I think, is totally right that a. we need to let the judge know how important the e-cig is to us and all our alikes. Important as in matter of life or death. We NEED to get that across, I think. And b. we need to give counterweight where we can to the anti's that will be sending in their letters.

Why wouldn't it be possible to write to the judge; to convey to him just how important this case could be for us; AND also tell him of our unsureness as to this being a tobacco-product (that we think it isn't in fact) - but that, seeing government is letting itself be led by the nose by tobacco/Philip Morris and is not going to make a seperate category for harm reduction AS IT SHOULD BE DOING - that this leaves us with no options, but that still our devices and liquid need to be saved in order to save ten-thousends or hundreds-thousands lives - that we therefore are writing these letters anyhow, trusting or hoping that justice can instead be done by judges in this case... ?

Perhaps this would be an inbetween-option that gets across what needs to get across; but does not put us on the (tobacco-)side of SE in the process?

I can speak from experience here. I had smoking-gun evidence on a very high level NYC exec in Law Enforcement. The judge was the guy who socked it to the reporter for "collaborating with the enemy", Lynne F. Stewart, the radical defense lawyer accused of aiding Islamic terrorism.

The jurors argued behind closed doors in that same Federal District Court in Manhattan for another month before they finally agreed to convict Ms. Stewart on all five charges she faced for smuggling messages out of prison from her terrorist client, Sheik Omar Abdel Rahman. (May he rot).

That looked great to me and my lawyers!!! Nevertheless, the judge would not allow the single document (in the public record) that was the nail in the coffin into the court record!!!!!! The whole case turned upside down because my constitutional rights were not protected! Why? Because in the course of my job as an government investigator for a Law Enforcement Agency I did not have protected speech as a common civilian! That was because of a case in Kentucky Supreme Court that decided that in the midst of the NYC hearings!!!! So some other judge in another Federal Court made a ruling that set a precedent and blindsided my case into a appeal! Does anyone have any idea about how much this can cost, especially going into appeals and how long this process can drag on?

This is a crapshoot. Let's see and hope that the twists and turns go in our collective favor on this one.

 

[techtravis]

That is my biggest fear with this suit; SE has become our public voice. It's like hiring "Vince from Shamwow" to be your attorney.

ohh, crack up everytime I read that LMFAO

 

[doc g]

Hurray for SE!
They are the entrepenurial giants in the ecig world,
(unless any of the vendors here have sold more than 600,000 units?).
My guess is that they have converted more smokers to vapers than this forum & all of it's USA sponsors combined.
Their filing against the FDA is brilliantly prepared, very well written & they will win,
& that will be very good news for all vapers.

 

[Kate]

I bet they've turned more people against vaping than all the rest put together.

 

[ChainSmkr]

I've implied in previous posts that I blamed Smoking Everywhere's and NJoy's fraudulent marketing of e-cigs for this mess, and now my enemy becomes an ally I must support. How ironic is that?

For those of you worried about losing your nic fix (like a good addict should), don't forget that we're supposed to be weaning ourselves down to 0 nic. However, if push comes to shove, also don't forget that we can always slap on a patch or chew on a couple of pieces of nic gum while we vape It's much safer and easier than trying homemade nic extraction.

 

[Slea]

edit: Which may help to explain some of the differences in opinion.

True.

It may also help that I've worked in an industry that dealt with FDA and DEA rules.

And seriously, "new category" just isn't on the table here. I know that seems ideal to many, but it isn't happening.

I know many don't like to think of it as a cigarette or a tobacco product (heck, many of us keep talking about how we are thrilled to have "quit" these things), but that, I think, is the most helpful definition for us right now.

Something SE's lawyers, regardless of what we think of the company in general, clearly get.

 

[Smo]

I did not have the time to read the whole thread and just peeked around, but my opinion is that by claiming that e-cigs are a tobacco derived product (and i think that nothing else can be further from truth), SE is tring to find a compromise with BigWhatever along the lines of "let us do our biz, and you can tax the .... out of it".

Just my 2 cents, and i apologize if i'm repeating something already stated and discussed. I really don't have much time for the forum these days.

EDIT: Baaah how banal, the discussion has gone far beyond this already. w/e.

 

[esmok-e]

True.

It may also help that I've worked in an industry that dealt with FDA and DEA rules.

And seriously, "new category" just isn't on the table here. I know that seems ideal to many, but it isn't happening.

I know many don't like to think of it as a cigarette or a tobacco product (heck, many of us keep talking about how we are thrilled to have "quit" these things), but that, I think, is the most helpful definition for us right now.

Something SE's lawyers, regardless of what we think of the company in general, clearly get.

How about "neutroceutical"?

 

[doc g]

How much will you bet Kate?

 

[Kate]

Fifty p

 

[LaceyUnderall]

wrong thread... sorry

 

[doc g]

Probably no way to know exactly what the facts are,
but besides SE,
which other reseller has had their big shipments confiscated
&
has enough cash on hand to retain expert counsel to challenge the FDA?