If the feds win

[Mac]

If the FDA and other conspiracists have their way and e-cigs get banned, what do you think people like me can expect? I don't own the business and have been working for them for at least 6 months before they changed their product to e-cigs. (10 months ago) Going on a year and a half employeed by these people. Will a court decision equate to an immediate cease and desist order if the FDA wins? What agency will issue it? Enforce it? Will they seize product? Will my employer face criminal charges? Will I?

Do I have any legal recourse as a product user? Will I be forced to choose between tobacco and illicit e-cigs? If I am forced back to tobacco can I sue? Can I sue because they made my job illegal?

I have never had a good job before this one and if e-cigs are made illegal, I will be financially destroyed. What are my options?

 

[yvilla]

Mac, there's a real problem here in that there are no definitive answers to most of your questions.

If Judge Leon decides in favor of the FDA, ruling that the ecig is a "drug product", that would put enforcement squarely within the hands of the FDA. And representatives of the FDA have stated in the past their intention to step up enforcement, given their position that as "drug products" needing prior FDA approval, the sale of ecigs in the US is illegal. However, the FDA has a great deal of discretion as to how exactly it wishes to proceed, ranging all the way from little to no action, to warnings published on its website, to cease and desist letters, and all the way to raids and arrests and seizures of product both domestically and at the borders. It has both civil and criminal sanctions in its arsenal of powers as well, depending on the circumstances. No one can predict exactly how the FDA will decide to act, nor how quickly.

A further complication with your question about timing comes with the likelihood of appeal. A stay of any enforcement action pending appeal can always be requested, but there is no guarantee one will be granted.

As for your other questions about possible legal options as a consumer, I'm sure you would get a multitude of different answers from different attorneys. There may well be some creative legal theories someone could come up with in an attempt to litigate the kinds of claims you mention, but not everyone would agree on the chance of success if such litigation were actually attempted.

Please remember that even though I personally think and fervently hope we still have a chance that Judge Leon's decision could go the other way, even then we would not be out of the woods, not by a long shot. If he rules that ecigs are "tobacco products" as argued by the plaintiffs, we then enter another long period of uncertainty, and potentially even further litigation, as the many questions about how ecigs should be treated and regulated under the FSPTCA get hammered out.