FDA Sued Over Electronic Cigarette Embargo

[SiGCiG]

IMO...If they are issued the TRO, that will be a good sign for them and their case. (TRO takes 5-10 days?) THAT is what they are truly shooting for, if not, unfortunately it could be the end of the road for their current business platform as the legal costs will skyrocket and the battle will last a looooong time.

 

[Vicks Vap-oh-Yeah]

I guess it depends on what your definition of 'is' is.

Ivisi

P.S. 10 brownie points to the first person who gets the reference in my last sentence.

Shall I just call you Bill? Or do you prefer Mr. President?

 

[Vape]

I think Smoking Everywhere helped cause the problem with unscrupulous marketing techniques, now they are taking the FDA to court claiming e-cigarettes should be in the same class as tobacco cigarettes.
I for one do not feel comfortable leaving the future of e-cigs in the hands of Smoking Everywhere's legal eagles.

 

[Kate]

I agree that being classed as a drug isn't great either Yvilla.

If there's no chance of avoiding either tobacco or drug classifications then I guess it's a matter of which is less undesirable.

The FDA look likely to regulate tobacco anyway so I don't see any gain with that except for SE's short term profits.

Which are they more likely to enforce, drugs or tobacco?

 

[ladyraj]

I think there are only two options here. Tobacco product or New drug. I'd rather go with tobacco product if it came down to it.

Hi, I'm new to this site and I just ordered my 1st e-cig from Janty (I hope it makes it in the mail)!

I believe the question may be if distilled/refined tobacco is a tobacco product. On the surface I would say yes, but if we use the example of a poppy plant and opium distilled from it, the answer would be no. If a new formulation of nicotine of refined nicotine is considered as a new drug then the FDA will mandate a premarket process.

I think the argument may lie in the fact that refined nicotine has been used for decades and could be grandfathered in. In addition, although the FDA is calling nicotine a drug, it is actually a compound that is present in common vegetables such as potato, tomato, peppers, and eggplant. The FDA does not mandate studies for our vegetables (even if we do reduce them to a liquid state). It gives you something to think about when a substance present in vegetables becomes so troubling!

 

[Oldnamenomore]

I hate this why can't they just ****ing leave us alone. We're not hurting anybody else for a change and we're not doing as much damage if any to ourselves.

 

[yvilla]

I agree that being classed as a drug isn't great either Yvilla.

If there's no chance of avoiding either tobacco or drug classifications then I guess it's a matter of which is less undesirable.

The FDA look likely to regulate tobacco anyway so I don't see any gain with that except for SE's short term profits.

Which are they more likely to enforce, drugs or tobacco?

I agree Kate. If the FDA gains the right to regulate tobacco, then the "protection" SE seeks from the FDA right now becomes moot. However, my only slim source of optimism left is the possibility that the Waxman bill could get harm reduction amendments tacked onto it, that would then give ecigs a chance.

 

[V-V]

Isn't ANY major press on this good? I understand where you are coming from Kate, but at this point so few know about e-cigs that I can't help thinking that any press is good press. Very very few who know the facts about them will say that they're worse than cigarettes.

(I'm speaking specifically about contacting the judge listed in the SE suit)

 

[Kate]

... the Waxman bill could get harm reduction amendments tacked onto it, that would then give ecigs a chance.

It might be worth reserving judgement on whether to support tobacco classification until the bill has been finalised.

At least at the moment the FDA are letting some shipments in even though they've decided it's a drug.

I'm sorry this is happening for you and count my lucky stars that the UK authorities haven't taken this issue up yet.

EDIT
This is about law, not publicity V-V and has long term implications for availability.

 

[Vicks Vap-oh-Yeah]

"Electronic cigarettes are made from tobacco and are the functional equivalent of traditional cigarettes and should be regulated in the same manner as traditional cigarettes.”
.

Isn't this going to be a hard arguement to win stated like this? I mean, take a good look at your PV - it's not made out of tobacco.....it's made out of steel, electronics, plastic, paint......no tobacco in their mfg at all.....only miniscule amts in the liquid.

I can understand the second part of the quote as clarifying the first, but still.....this could very well lump the device together with the liquid, instead of separating them.....

I would still like to see that happen - a definition for the gizmo (Chinese novelty item), and a definition for the liquid...

 

[V-V]

It might be worth reserving judgement on whether to support tobacco classification until the bill has been finalised.

At least at the moment the FDA are letting some shipments in even though they've decided it's a drug.

I'm sorry this is happening for you and count my lucky stars that the UK authorities haven't taken this issue up yet.

EDIT
This is about law, not publicity V-V and has long term implications for availability.

Then what's the point of vape ins and such? If it's not about publicity forming/shaping the law? Petitions are publicity, letters are also.

 

[techtravis]

Right, and one last thing to consider is that, if the PV is classified as a 'tobacco products', then it falls under the same usage bans that cigarettes currently fall under. So, the more I think about it, the more I agree that classification of the device as a 'tobacco product' does not serve our best interests.

However, now that I'm looking at some details, and not completely understanding legalese (the english language as translated by a lawyer), they could be arguing that they should be regulated 'like' tobacco products, but not 'as' tobacco products'.

I guess it depends on what your definition of 'is' is.

Ivisi

P.S. 10 brownie points to the first person who gets the reference in my last sentence.

Yes, but it is not a burning tobacco product.

 

[Kate]

Then what's the point of vape ins and such? If it's not about publicity forming/shaping the law? Petitions are publicity, letters are also.

Yep, lobbying legal representatives might get you some attention. Are you sure you want it?

Your device and eliquid could become a tobacco product or encourage enforcement of drug laws.

You could be giving Smoking Everywhere public credibility for a short term gain (for them) and long term ban for everyone.

There's no point in raising awareness of a product that isn't legal.

 

[J W in Texas]

Why is this any different than a pipe? The fda doesn't regulate a pipe. It's just a device. There isn't any difference. It holds a product and that is all. We just warm our product with a battery and a coil instead of lighting it on fire. The whole thing is ridiculous!

So I guess my glass is now a beer?! fda idjits!

 

[Sun Vaporer]

Judge Richard J. Leon has an outstanding education and legal background. For anyone interested, here an informative writeup on him------Sun

Leon served as a law clerk to the justices of the Massachusetts Supreme Judicial Court from 1974 to 1975 and to Thomas F. Kelleher of the Rhode Island Supreme Court from 1975 to 1976. Leon was an attorney for the Immigration and Naturalization Service of the United States Department of Justice from 1976 to 1977 and a Special Assistant U.S. Attorney in the office of the U.S. Attorney for the Southern District of New York working in the Civil Division from 1977 to 1978.
Leon received his LL.M. from Harvard Law School in 1981.
Leon was an assistant professor of law at St. John's University School of Law from 1979 to 1983 and a senior trial attorney in the U.S. Department of Justice from 1983 to 1987. Leon served as deputy chief minority counsel on the Select Committee to Investigate Covert Arms Transactions with Iran of the United States House of Representatives, which investigated the Iran-Contra affair, from 1987 to 1988.
Leon was appointed Deputy Assistant Attorney General and served from 1988 to 1989, when he entered private practice in Washington, D.C., first with Baker & Hostetler from 1989 to 1999 and then with Vorys, Sater, Seymour and Pease from 1999 to 2002, when he was appointed to the district court.
Leon was a member of the President's Commission on White House Fellowships from 1990 to 1993. Leon was appointed chief minority counsel on the October Surprise Task Force of the House Foreign Affairs Committee from 1992 to 1993. He served as special counsel to the House Financial Services Committee in 1994. He has been an adjunct professor at Georgetown University Law Center since 1997.


See Richard J. Leon - Wikipedia, the free encyclopedia

 

[J W in Texas]

Yep, lobbying legal representatives might get you some attention. Are you sure you want it?

Yes, we do...and it's about time!

 

[firdaddy]

well the problem to me is that PV's are obviously not clearly defined as to what it is, that's definitely a given, however throughout history things either fall into a pre existing category or, they are assigned a new one.. SE is trying to get vaping thrown into a pre existing category to make this move as quick as possible to get the FDA to stop holding their shippments.. Frankly what we need is for someone to push to get PV's listed as what they are, personal vaporizers. They are not a drug (meant to treat or cure something) nor are they tobbacco.. they have nicotine but so do tomatoes
however i feel as that i am stating the obvious here

 

[Kate]

well the problem to me is that PV's are obviously not clearly defined as to what it is, that's definitely a given, however throughout history things either fall into a pre existing category or, they are assigned a new one.. SE is trying to get vaping thrown into a pre existing category to make this move as quick as possible to get the FDA to stop holding their shippments.. Frankly what we need is for someone to push to get PV's listed as what they are, personal vaporizers. They are not a drug (meant to treat or cure something) nor are they tobbacco.. they have nicotine but so do tomatoes
however i feel as that i am stating the obvious here

Maybe that would be the wisest way to represent us with petitions, lobbying, publicity, attention, whatever.

If you want attention then be honest and say what it is and not what Smoking Everywhere tell you to say.

 

[esmok-e]

Tobacco is the FDA Achilles heel that the SE lawyers pounced on. It has precedent cases. If the court demands a test of an SE cart and finds no tobacco, or not enough tobacco to classify it as the defining factor, as stated by SE attorneys, in it being "a functional equivalent" of a tobacco product - then the tobacco heel becomes the nicotine kick and the FDA still has the ball. FDA sleeps with Big T and Big P. Tobacco goes out and NRT comes in. Touchdown. Waxman gives Tobacco to FDA and judge says it ain't. Touchdown.

The FDA did violate protocol but that's a wrist slap. If the judge says it ain't tobacco... I don't see those legal fees coming back. The 600,000 units add up to how much actual tobacco? 600,000 SE kits at mall prices are $107,400,000! Landed cost: $18,000,000. That's a lot of headroom. Were import tariffs paid on that? How much actually got jacked? That could trip up their case. Maybe it's a last ditch money grab by SE with a lawyer who found one pressure point to squeeze. The stakes are high for everyone but the outcome may not really change anything.

The lawyers may be holding a clip with one shell that they hope won't miss, but is this the target? A 600,000 pound Gorilla that will want revenge? Tobacco is not the magic bullet.

We know, in the end, it's not about tobacco or nrt, it's about free choice, free market - freedom.

And that's something any monkey already knows. And if they don't someone has to let them in on it.

Guess who that is. It's us. This is just another opportunity to spread the word. Just like the flu and PG. We need to become the headlines. If it gets banned, we might need to go to jail as conscientious objectors. Civil disobedience. And let's hope that everyone comes to their senses.

 

[NY JETS]

Maybe that would be the wisest way to represent us with petitions, lobbying, publicity, attention, whatever.

If you want attention then be honest and say what it is and not what Smoking Everywhere tell you to say.

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.