Harkin, Waxman, Welch Urge State Attorneys General to Bring E-Cigarettes Under Tobacco Master Settlement Agreement
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This falls right on the heels of yesterday's news. Cigs down, profits up. Cigs down, eCigs up.
I'm so appalled I can't think straight.
Me too.
NB that both Harkin and Waxman have decided not to run for new terms. Looks like this is to be their swansong, a la Nanny Bloomberg. Will they go to work for Pfizer, or GSK, or Smoke-Free Everywhere? Stay tuned....
(On a legal note, I wonder how such a proposal would be enforceable, given that no ecig manufacturer is a *signatory* to the Master Settlement. In fact, no ecig manuf. was a party to the lawsuit that resulted in the MS. Hmmm....)
Yeah, on its face, the notion of attorneys general forcibly adding new parties, selling entirely new products, to an already established settlement agreement seems like nonsense -- but I confess I'm not well acquainted with all the particulars. I imagine that this request has more to do with the legislation enabling/accommodating the settlement agreement in each state than it does with the settlement itself.
Not signatories to the agreement, can't be held to it.
They will, however, decide to push for a generic ban on sale of products that aren't provided by signatories without naming PVs by class or brand, hoping to avoid having voters notice the two actions moving in concert.
It'd almost be a decent chess game with them, if they weren't trying to kill us all.
They will, however, decide to push for a generic ban on sale of products that aren't provided by signatories without naming PVs by class or brand, hoping to avoid having voters notice the two actions moving in concert.
It'd almost be a decent chess game with them, if they weren't trying to kill us all.
From Tobacco Master Settlement Agreement - Wikipedia, the free encyclopedia
Here's how the MSA (master settlement agreement) allows states to put pressure on NPMs (non-participating manufacturers):
So basically a NPM has to pay more (under the model escrow statute, and all states have adopted something similar).
But ...
As I read the Wikipedia article, the penalties against NPMs (non-participating manufacturers) are assessed per cigarette, as opposed to revenue. How precisely this applies to PV manufacturers is obviously unclear.
However three of the four OPMs (original participating manufacturers) are PMI (now Altria), Lorillard, and Reynolds - a point which couldn't have escaped the notice of Harkin & co. In other words, those mfr.s are bound by the settlement. But if the states try to enforce it against them based on PV marketing, there will obviously be litigation about whether the MSA merely applies to tobacco cigarettes.
(In fact as I understand it, it never applied to cigar, snuff, and pipe tobacco manufacturers. That's why you can still buy flavored cigars. Note that they also contain nicotine. So the logic in Harkin et. al's missive is a tad twisted. Does the MSA apply to PVs because they contain nicotine? Or only to those that "look like" cigarettes and contain nicotine? What about those that "look like" cigarettes but lack nicotine? The mind boggles
Bear in mind, of course, that just because the MSA says that penalties are assessed per cigarette ultimately means very little - if the states wish to just haul off and pass taxes on vaping supplies. They don't need the MSA to pass anti-vaping legislation of any kind.
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In the short- and intermediate-term, I'm not sure how much of the money can be used for research and education. Research money could be used to fund hit job studies. Education money could be used to fund advertising (I don't have to explain what the effect of that might be). Or perhaps "vaping abstinence" programs in schools. What about "vaping cessation" programs, or therapies?
As far as I can tell, no one besides a tobacco company would have legal "standing" to contest how the states spend the money. In other words, if vapers outnumber smokers three years from now, all the funding currently dedicated to anti-cigarette education and advertising could then be transferred to corresponding anti-vaping measures (unless a tobacco company involved in the settlement objects).
***
It's also interesting to note the "Securitization" section of the article. Many states have issued bonds against future payments. Which means they've probably already spent much of the money. In fact, the most cash-strapped states are mostly those which may be particularly inclined to apply the money against vaping.
***
So yes, this could be big trouble. Or it could be a political stunt. I'm more inclined to consider it to be more of the latter at the moment. However, it will take a few years and perhaps a good deal of litigation before we really know.
That said, if there are hardly any smokers left in five years ... vapers are going to be the next target.
On the other hand, gobs of "tobacco control" money is already being spent against vaping, in the form of grant money for journals, conferences, and other research purposes. Not to mention nonprofits and the salaries of state, local, and federal staff who are wholly or in part compensated to reduce smoking prevalence.
For some reason, no one has bothered to ask whether all of this money is justifiably directed towards vaping. (For ex., how can the ALA justify paying people to issue anti-vaping press releases, when there's no evidence that vaping damages lung tissue?) And the ACA (etc.)?
Here's how the MSA (master settlement agreement) allows states to put pressure on NPMs (non-participating manufacturers):
So basically a NPM has to pay more (under the model escrow statute, and all states have adopted something similar).
But ...
As I read the Wikipedia article, the penalties against NPMs (non-participating manufacturers) are assessed per cigarette, as opposed to revenue. How precisely this applies to PV manufacturers is obviously unclear.
However three of the four OPMs (original participating manufacturers) are PMI (now Altria), Lorillard, and Reynolds - a point which couldn't have escaped the notice of Harkin & co. In other words, those mfr.s are bound by the settlement. But if the states try to enforce it against them based on PV marketing, there will obviously be litigation about whether the MSA merely applies to tobacco cigarettes.
(In fact as I understand it, it never applied to cigar, snuff, and pipe tobacco manufacturers. That's why you can still buy flavored cigars. Note that they also contain nicotine. So the logic in Harkin et. al's missive is a tad twisted. Does the MSA apply to PVs because they contain nicotine? Or only to those that "look like" cigarettes and contain nicotine? What about those that "look like" cigarettes but lack nicotine? The mind boggles
Bear in mind, of course, that just because the MSA says that penalties are assessed per cigarette ultimately means very little - if the states wish to just haul off and pass taxes on vaping supplies. They don't need the MSA to pass anti-vaping legislation of any kind.
***
In the short- and intermediate-term, I'm not sure how much of the money can be used for research and education. Research money could be used to fund hit job studies. Education money could be used to fund advertising (I don't have to explain what the effect of that might be). Or perhaps "vaping abstinence" programs in schools. What about "vaping cessation" programs, or therapies?
As far as I can tell, no one besides a tobacco company would have legal "standing" to contest how the states spend the money. In other words, if vapers outnumber smokers three years from now, all the funding currently dedicated to anti-cigarette education and advertising could then be transferred to corresponding anti-vaping measures (unless a tobacco company involved in the settlement objects).
***
It's also interesting to note the "Securitization" section of the article. Many states have issued bonds against future payments. Which means they've probably already spent much of the money. In fact, the most cash-strapped states are mostly those which may be particularly inclined to apply the money against vaping.
***
So yes, this could be big trouble. Or it could be a political stunt. I'm more inclined to consider it to be more of the latter at the moment. However, it will take a few years and perhaps a good deal of litigation before we really know.
That said, if there are hardly any smokers left in five years ... vapers are going to be the next target.
On the other hand, gobs of "tobacco control" money is already being spent against vaping, in the form of grant money for journals, conferences, and other research purposes. Not to mention nonprofits and the salaries of state, local, and federal staff who are wholly or in part compensated to reduce smoking prevalence.
For some reason, no one has bothered to ask whether all of this money is justifiably directed towards vaping. (For ex., how can the ALA justify paying people to issue anti-vaping press releases, when there's no evidence that vaping damages lung tissue?) And the ACA (etc.)?
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I sure hope BT makes tons of money to fight them hard and right and even clear up the SHS air again. . I'm suck and tired of seeing people demonized, treated like lepers and murderers, unemployed and homeless all because of a stupid habit that's legal to have.
Speaking of legal ... this video sums up my thoughts & feelings quite nicely.
the state is a parasite on society
The State is a Parasite on Society - YouTube
Speaking of legal ... this video sums up my thoughts & feelings quite nicely.
the state is a parasite on society
The State is a Parasite on Society - YouTube
Show me the money...
I think that child is being poisoned by the third hand smoke (and many ugly germs) sucking on that money.
To say nothing of traces of illegal
found on almost all paper currency in this country.... We need to ban paper money! For the chiiiiildren!!
I came here looking for a thread that would explain this. I read the letter and was totally confused as to how this could possibly work re: signatories etc... I understand they want to limit marketing and appeal to youth, but I totally don't get how ecig manufacturers could be held to signing over money that was awarded based on harm, when none of these products have in fact been shown to cause harm. I admit, I'm still baffled. Hopefully this won't go anywhere.
We're talking about ANTZ reasoning here, which only an ANTZ can follow, so don't feel bad. (Probably the only ones who like this idea are the lawyers, who anticipate much revenue from the lawsuits that will surely result if such a proposition takes hold...)
As an aside: I now have a much better understanding of what motivated the AGs' letter to the FDA. Had not realized that their group derived so much income from the Master Settlement!
Sorry if my post was a bit opaque. Let's start with the facts:
1) Under the "model escrow statutes" adopted by all states in the wake of the MSA (master settlement agreement), states can tax NPMs (non-participating manufacturers) a certain extra amount per cigarette for not joining the MSA.
2) The MSA requires that OPMs and SPMs (original and subsequently participating manufacturers) refrain from offering certain types of ciegarettes - i.e. flavored ones except for menthod, as well as refrain from engaging in certain marketing practices.
3) The MSA also sets aside a certain amount of money for research and education.
Now what Harkin et al. are asking the state A/Gs to do is to: use their authority to extend the "model escrow statutes" to PV suppliers. I.e. to interpret these statutes as if they applied to vaping.
My previous post (#7) dealt with whether this request is a plausible one given the MSA and corresponding "model escrow statutes" which all states have passed, and/or whether the A/Gs could have any impact if they took Harkin & co.'s advice.
What I argued was that the MSA is either inapplicable to PVs and/or that it would be very difficult to apply to them, even if it was used against the OPMs and SPMs who signed on to the MSA. Oh, and BTW there's probably no money left for research and education, even if the states wanted to use it against vaping (due to the securitizing of future payments). Therefore this letter written to the A/Gs is probably little more than a political PR gimmick.
Anyway, that's my
on the whole thing. Hope it helps answer your Qs (although I'm no expert, so YMMV).
It won't. TMSA was an agreement between the four largest tobacco companies in 1998 (iirc) and various national agencies, and monetarily was one of the largest in-court settlements against (and for) BT. It always confused me how the TMSA was drawn up with "the victims in mind", yet only about 10% of the monies collected under TMSA actually get funneled into anti-smoking agendas. Not to even mention the fact that TMSA made it impossible to confront BT with civil suits for personal harm from their products (a huge crock).
I really don't know why they'd even bring up TMSA, it has nothing to do with vaping at all, and is far too difficult to pull off. I smell political stunt.
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