If liquid and ecigs become taxed the **** out of, you don't suppose we could just buy everything overseas? Or do you think this will be illegal too?
Fda To Regulate E-Cigs As Tobacco Products
- Thread starter crashinbrn
- Start date
- th_trl_thread_readers 0
-
- Tags
- nicquid
- Status
Take a look at the text of the PACT Act (see discussion above) Text of S.1147 as Enrolled Bill: PACT Act - U.S. Congress - OpenCongress. It bans sale of "tobacco" and "smokeless tobacco" over the internet (including internationally). "The term smokeless tobacco means any finely cut, ground, powdered, or leaf tobacco, or other product containing tobacco, that is intended to be placed in the oral or nasal cavity or otherwise consumed without being combusted."
The problem is that once the FDA labels ejuice as tobacco product, it falls under the purview of the PACT Act, and the PACT Act, although enumerating different kinds of smokeless tobacco, also has that catchall of covering any "other product . . . intended to be place in the oral . . . cavity." I think a court could easily find this statute to mean that Congress's intent was to cover ecigs. And legislative intent determines what courts do, unless the law is unconstitutional (which it plainly isn't).
I think a lot is going to depend on the research that comes out on harm reduction and public health studies v. anti-smoking reactionary/big tobacco lobby. Given the relative weight of these powers, this isn't necessarily good, folks.
My liquid does not contain "any finely cut, ground, powdered, or leaf tobacco, or other product containing tobacco." "Containing tobacco" means something quite different than "derived from tobacco."
We have had more than one attorney state firmly that e-cigarettes do NOT come under the PACT act, simply by being categorized as a tobacco product. The only reason they can be regulated as a tobacco product at all is because of a different law, the Family Smoking Prevention and Tobacco Control Act. Judge Leon's opinion stated, "FDA may now regulate tobacco products, which the Act defines as 'any product made or derived from tobacco that is intended for human consumption,' 21 U.S.C. § 321(rr)(l)"
"Smokeless tobacco" is very narrowly defined in the PACT act, and the wording of the Tobacco Act does nothing to change that.
We have had more than one attorney state firmly that e-cigarettes do NOT come under the PACT act, simply by being categorized as a tobacco product. The only reason they can be regulated as a tobacco product at all is because of a different law, the Family Smoking Prevention and Tobacco Control Act. Judge Leon's opinion stated, "FDA may now regulate tobacco products, which the Act defines as 'any product made or derived from tobacco that is intended for human consumption,' 21 U.S.C. § 321(rr)(l)"
"Smokeless tobacco" is very narrowly defined in the PACT act, and the wording of the Tobacco Act does nothing to change that.
But where would we be without at least one person trying to stir up the debunked PACT Act hysteria? It reminds me of that whack-a-mole game.
My bad--in some respects.
I just spent about three hours reading the text of the Leon and appellate decisions, as well as some interpretation, and you are correct about FSPTA controlling the situation in terms of FDA regulation (although, to put it precisely, not because of Leon's denial of preliminary injunction, but because of May stipulated final judgment (not with prejudice) based on appellate ruling, in which the FDA agreed that it would not take the case to the Supremes). There is another case pending in another jurisdiction where the D.C. Circuit's decision is not controlling--I can't remember which jurisdiction or the case caption--and if it is in federal court, that could be bad news.
Moreover, both the lower and upper court left the door wide open for the FDA to bring a better argument to bear in subsequent cases. Courts are required by Supreme Court case law (the Chevron case) to defer to administrative rulings to the extent reasonable; both courts said that the FDA stance was unreasonable, as argued. But if it can come up with a better argument (which I'm sure its lawyers are plotting behind closed doors given its willingness to give up the fight here) it might just prevail.
Note that the appellate ruling (which controls the Leon stipulation) clearly states (Section III of decision at http://www.cadc.uscourts.gov/internet/opinions.nsf/D02F9D2CA50299F0852577F20070BCC2/$file/10-5032-1281606.pdf) that electronic cigarettes are derived from tobacco. This--and the courts' repeated emphasis that the reason they could not side with the FDA was because of faulty argument in the case--could easily be the nail in the coffin if the FDA came up with something better.
And as for the PACT Act--it wouldn't take a decent attorney much to make a persuasive argument that "derived from" equates "containing" tobacco, especially in light of the preamble (statement of Congressional intent) that one of the purposes of PACT is to collect taxes on things that should be taxed. When the language of a statute is not clear, legislative intent informs the meaning of the statute--a basic rule of statutory interpretation. I disagree wholeheartedly that the Pact Act is unambiguous. It is full of qualifiers--including the "and others" or whatever statement at issue here. It would just take 1) a decent argument from the other side--especially given the court's statement above--with which a court would agree or 2) a very, very simple modification of the PACT Act (which all upstanding legislators would line up to sign) to really put PACT to work on ecigs.
I don't mean to get into a pissing contest with you; trust me, I don't like this at all. I just think we should be a bit more skeptical and consider all the ramifications of this before legitimate and researched posts are dismissed.
Last edited:
Anouk, no one ever said the PACT Act could not be amended to cover other tobacco products, potentially including the ecig, because of course it could!
But no, "containing" neither does, nor, I submit, would ever be construed to, equate with "derived from".
Further, all tobacco taxation statutes are replete with specific definitional provisions, and their taxing schemas are also tied to and vary depending on the specific individual tobacco product. For that reason, for purposes of federal taxation, even once administatively deemed to be tobacco products by the FDA (still at least a couple of years away), ecigs would still not be covered by the existing tobacco taxation scheme. The same goes for all the various states (there is only one state, I believe, that has as of yet amended its tobacco taxation statutes to include ecigs). Bottom line, excise taxation of ecigs will not take place until amendments in both federal and state legislatures to specifically include ecigs in tobacco taxation statutes are proposed and passed.
Thus, even your legislative intent argument - correct in its premise - is faulty in its application to interpretation of the PACT Act as currently written. For if ecigs are not subject to tobacco taxation in the first place, as they are not/would not be currently even if they were already deemed to be "tobacco products", then this is even more support for the argument that of course ecigs are not covered by the PACT Act - not only not "containing" tobacco, but also not at all within the realm of the Act's primary purpose as you correctly stated it - to effectuate tax collection.
But no, "containing" neither does, nor, I submit, would ever be construed to, equate with "derived from".
Further, all tobacco taxation statutes are replete with specific definitional provisions, and their taxing schemas are also tied to and vary depending on the specific individual tobacco product. For that reason, for purposes of federal taxation, even once administatively deemed to be tobacco products by the FDA (still at least a couple of years away), ecigs would still not be covered by the existing tobacco taxation scheme. The same goes for all the various states (there is only one state, I believe, that has as of yet amended its tobacco taxation statutes to include ecigs). Bottom line, excise taxation of ecigs will not take place until amendments in both federal and state legislatures to specifically include ecigs in tobacco taxation statutes are proposed and passed.
Thus, even your legislative intent argument - correct in its premise - is faulty in its application to interpretation of the PACT Act as currently written. For if ecigs are not subject to tobacco taxation in the first place, as they are not/would not be currently even if they were already deemed to be "tobacco products", then this is even more support for the argument that of course ecigs are not covered by the PACT Act - not only not "containing" tobacco, but also not at all within the realm of the Act's primary purpose as you correctly stated it - to effectuate tax collection.
Last edited:
I agree that "derived from" is different from "containing" as a matter of fact; but as a matter of law, it is an open question. A good argument could be made that the PACT Act should be construed broadly, given its preamble. I think you misunderstood my point re that very section of the Act: I did not its say its primary purpose was taxation, I said it was one of its purposes. It was also meant to control, inter alia, the access of minors to tobacco products and the the ability of sellers to profit from sales (very broad!) See the Act (Text of S.1147 as Enrolled Bill: PACT Act - U.S. Congress - OpenCongress). With this understanding, you must agree that your statement that "[f]or if ecigs are not subject to tobacco taxation in the first place, as they are not/would not be currently even if they were already deemed to be "tobacco products", then this is even more support for the argument that of course ecigs are not covered by the PACT Act." The multiple purposes of the PACT Act moots that whole line of argument.
The deference given to administrative bodies per Chevron (see http://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc. for cursory interpretation) would make courts amendable to more convincing FDA arguments: it is a key case in American case law dictating that, generally speaking, a party has a high bar to challenge an administrative body's rules. The D.C. Circuit already left that door open, basically inviting the FDA to come back.
I also think that PACT could, in one session, easily be modified by simply adding the "derived from" language, which would mooting this case entirely. And the legislature would be even more eager to do this given constituent demand.
But you do make a very, very good point about tax law. Specifically regarding state regulation. Assuming my argument is correct, the federal government could created tax ecigs pursuant to PACT. But until the rest of the states begin taxing ecigs and their constituent materials, it will be a long time before state taxation would occur.
PACT is, imo, likely to cover ecigs soon--either by judicial fiat or legislative caving. While I concede that worst parts of the PACT Act (taxation) would not apply for a while, but one easy sweep of the pen by either the courts or legislature would impose the burdensome reporting requirements on both retailers and consumers and likely federal taxation. And so PACT is, in my opinion, likely to cover ecigs relatively soon.
Just my two cents.
LOL - you cannot have it both ways.
You're the one who made the legislative intent argument - as a basis for arguing that ecigs could be construed to be within the coverage of the PACT Act, as currently written. "[E]specially in light of the preamble (statement of Congressional intent) that one of the purposes of PACT is to collect taxes on things that should be taxed". Your words, not mine.
It doesn't matter whether that intent to aid in tax collection was primary or merely "one of the purposes". Your thesis that that legislative intent supports shoehorning ecigs into the Act's current definition of "smokeless tobacco" simply doesn't hold water.
You're the one who made the legislative intent argument - as a basis for arguing that ecigs could be construed to be within the coverage of the PACT Act, as currently written. "[E]specially in light of the preamble (statement of Congressional intent) that one of the purposes of PACT is to collect taxes on things that should be taxed". Your words, not mine.
It doesn't matter whether that intent to aid in tax collection was primary or merely "one of the purposes". Your thesis that that legislative intent supports shoehorning ecigs into the Act's current definition of "smokeless tobacco" simply doesn't hold water.
LOL? Really??
And I thought we were having a reasonable, albeit increasingly pedantic, conversation. I'll just be quiet and climb back into my hole now.
Skitt
I may not be knowledgeable in politics nor the FDA.
But I think they cannot tax neither the device nor the nicotine but can regulate how it is made and how much nicotine can be deliver from it. Along what flavors can be put in it.
Reason I think this because......think how much the patch, gum and spray are being tax? I mean are they under the Pact act? I believe the sale taxes are only in taxes are involved.
Think in the future is more like of where and how they well be sold. Its a whole new ball park.
But I think they cannot tax neither the device nor the nicotine but can regulate how it is made and how much nicotine can be deliver from it. Along what flavors can be put in it.
Reason I think this because......think how much the patch, gum and spray are being tax? I mean are they under the Pact act? I believe the sale taxes are only in taxes are involved.
Think in the future is more like of where and how they well be sold. Its a whole new ball park.
I think a few of you are missing the point that an atomizer isn't a tobacco product, a battery isn't a tobacco product, a drip-tip isn't a tobacco product. They are separate entities.
Even sold as something else, even as mods, who would tax them? I don't see it as possible to tax electronic objects as tobacco products when by themselves, they are anything but.
If this was the case, label all lighters and butane torches as tobacco products.
Even if PG/VG goes up in price, it won't effect the bulk medicinal grades of both. Buy your own base, buy your own flavors and mix your own. I don't see how an electronic device can be taxed, especially mods.
Even sold as something else, even as mods, who would tax them? I don't see it as possible to tax electronic objects as tobacco products when by themselves, they are anything but.
If this was the case, label all lighters and butane torches as tobacco products.
Even if PG/VG goes up in price, it won't effect the bulk medicinal grades of both. Buy your own base, buy your own flavors and mix your own. I don't see how an electronic device can be taxed, especially mods.
It's all in the nic.
Not much else can be regulated.
Problem is, if they regulate a "nic" product, it will butcher the crap out of the e-cig industry. The equipment sales will drop drastically since few will have interest in using e-cigs w/o nic. Those who mix their own are a rare breed.
I won't even chime in on what's tending to be legal and what's not. All I know, is if they go after the nic juice, the industry will see a major fail.
Pig
Not much else can be regulated.
Problem is, if they regulate a "nic" product, it will butcher the crap out of the e-cig industry. The equipment sales will drop drastically since few will have interest in using e-cigs w/o nic. Those who mix their own are a rare breed.
I won't even chime in on what's tending to be legal and what's not. All I know, is if they go after the nic juice, the industry will see a major fail.
Pig
Regardin the flavoring issue:
President Obama banned flavorings in cigarettes and cigarillos only. Many popular flavoring cigarette companies have changed the dimensions of their flavored "cigarettes" and now market them as flavored cigars.
Not all tobacco products have flavoring regulations on them. So unless they pass new legislation about the flavoring of E Juice, the flavorings should be fine.
Now what I am really worried about is the TAX in CANADA. A pack of ciagarettes here is $10.00. Compare that to a 5 dollar pack in the States. If Canada decides to treat e-cigs as a tobacco product...it would be GAME OVER...
President Obama banned flavorings in cigarettes and cigarillos only. Many popular flavoring cigarette companies have changed the dimensions of their flavored "cigarettes" and now market them as flavored cigars.
Not all tobacco products have flavoring regulations on them. So unless they pass new legislation about the flavoring of E Juice, the flavorings should be fine.
Now what I am really worried about is the TAX in CANADA. A pack of ciagarettes here is $10.00. Compare that to a 5 dollar pack in the States. If Canada decides to treat e-cigs as a tobacco product...it would be GAME OVER...
I don't know how things work in Canada. In the U.S. the states can levy their own taxes, and the taxes on various tobacco products differ widely from one another. In Pennsylvania, for example, there is no tax on smokeless products, but cigarettes and cigars are heavily taxed (which is as it should be, IMHO). In other states there are taxes on smokeless products based in different things, e.g. retail per package, wholesale by dry weight, etc.
The thing to push for is if smoke-free products are taxed at all, it should be at a much lower rate than cigarettes. The tax structure should encourage people to switch to less hazardous alternatives.
The thing to push for is if smoke-free products are taxed at all, it should be at a much lower rate than cigarettes. The tax structure should encourage people to switch to less hazardous alternatives.
No one makes a fuss about Nicorette or patches- all those NRTs... they don't LOOK like cigarettes. It's still nicotine. I think people are freaked because e-cigs look too much like the real thing. The ignorant assume it's as bad. So... if they try to tax or ban juice, then they ought to tax gums or patches as well.
They're already attempting to tax nicquid with a proposal generated in the Senate by 14 Dems. Click the link in my signature, voice your opinion and vote no. Your representatives in congress will get the message. Also forward to any social media you are involved in. We need our voice heard.
- Status
Similar threads
