Interesting legal arguments

[providence]

The BLT: The Blog of Legal Times : Lawyers Ask Judge to Lift Ban on Electronic Cigarettes

Someone had posted the above link in the SmokingEverywhere v. FDA thread and I thought there were a few claims by SE and njoy that merited discussion:

E-cigarettes couldn’t be regulated as drug devices, he said, because the companies did not claim their product improved users’ health, or effected the body any differently than smoking a normal cigarette.

I had to LOL at this one. Until the FDA cracked the whip, they most certainly did make such claims. Now their website is full of disclaimers. And without their "better than analogs" slogan, why the heck would anyone switch?

“We don’t want people weaned off the e-cigarette,” Schwartz said. “We want them smoking it as long as they smoked regular cigarettes.”

This statement could be a public relatons disaster in the future. They are essentially admiting in open court that their business strategy is to keep people addicted.

He said the idea of regulating e-cigarettes differently from traditional tobacco products “didn’t pass the straight face test” given that they both do little but deliver nicotine.

Great, so now here comes federal and state tobacco taxes applied to e-cigarettes.

Anyone have any thoughts to these arguments used in court?

 

[GregH]

http://legaltimes.typepad.com/blt/2...dge-to-lift-ban-on-electronic-cigarettes.htmlThey are essentially admiting in open court that their business strategy is to keep people addicted.

Of course their business strategy is to keep people addicted. It's the same business strategy as Big Tobacco.

When it comes to nicotine delivery systems, there are two basic business models:

Big Tobacco/E-cigarettes: keep their products in continued use by committed (and admittedly addicted) smokers (or vapers). These products are meant for people who either have no desire to quit or can't quit for whatever reason.

Big Pharma: have such a low success rate at getting smokers off of nicotine that they will revert back to cigarettes. Then sell them another box of gum/patches/lozenges whenever said smoker wishes to try to quit again.

 

[providence]

Of course their business strategy is to keep people addicted. It's the same business strategy as Big Tobacco.

Its one thing to say you are offering an alternative to smokers, quite another to openly profess to trying to keep people addicted. Such statements can only invite heavy regulation and extreme oversight.

 

[DC2]

Anyone have any thoughts to these arguments used in court?

I read that earlier today, and thought the same things you did.

 

[GregH]

Maybe, maybe not. But it's the only argument they can make. If they even hint that e-cigarettes are meant to wean users off of nicotine and eventually stop using the devices, then they are stepping right into the FDA's clutches.

Speaking only for myself, I know fully well that nicotine is addictive. And my e-cigs help me continue with that addiction. I have used the e-cigarette to stop smoking (meaning inhaling combustible tobacco), not to wean myself off of nicotine or to stop the habits associated with using a tobacco cigarette. I think that is their point.

 

[BardicDruid]

I think that their trying to get them classed the same as analogs, yeah we'll have taxes then but they won't be banned.

 

[GregH]

I think that their trying to get them classed the same as analogs, yeah we'll have taxes then but they won't be banned.

Exactly. And while I wouldn't be too happy to pay huge taxes on them, it beats the alternative of having nothing to pay taxes on.

 

[lotus14]

Its one thing to say you are offering an alternative to smokers, quite another to openly profess to trying to keep people addicted. Such statements can only invite heavy regulation and extreme oversight.

Of course they made the argument that they want they customers to keep using their product. The only other alternative is that the product is an NRT and we know where that leads.

 

[Satyr]

I posted the same article earlier today:

http://www.e-cigarette-forum.com/fo...ask-judge-lift-ban-electronic-cigarettes.html

 

[Sun Vaporer]

The Key was danger was here:

"Justice Department attorney Drake Cutini, representing the FDA, contended that the e-cigarette companies were marketing their products using health claims, including customer testimonials that the devices helped them quit smoking. “It’s not just specific claims,” Cutini said. “It’s the entire circumstances of marketing.”

Cutini argued the imputed use test for the "intended use" and if the Judge agrees with that, then the books are cooked.

The reason Cutini proffered the testimonials was to show exactly why the majority of use are using the e-cig--------to mitigate the dangers of smoking cigarettes. And really that is what we are doing.

Sun

 

[eric]

Sun, that might be what most of us here on the forum are doing, but not necessarily what all vapers are doing.

I'm sure there are mounds of people who switched to the PV as an alternative to use in places where combusted tobacco products are banned.

 

[Sun Vaporer]

Sun, that might be what most of us here on the forum are doing, but not necessarily what all vapers are doing.

I'm sure there are mounds of people who switched to the PV as an alternative to use in places where combusted tobacco products are banned.

Eric-----the argument is just not there-----the intended use of this product is an alternative to tobacco, not as an NRT to quite, but as a healther alternative to the 4000 chemicals--that has been advertised over a million times by Suppliers.


It that was the case, the Judge would have not asked for more testimony about the new legislation. The case just is not there. SE blew it with bombarding malls with garbage claims and forced the FDA into the game.

Sun

 

[grimmer255]

Yep I agree with SUN SE screwed up.....but i hope the judge will see that this is an alternative to tobacco and not some NRT product. I just hope it's not to late.

 

[grimmer255]

i know i switched to vaping as an alternative to analogs....I like nicotine and i plan on vaping as long as i can. tobacco smoke smells and taste like s***. I have tried many times to quit cigarettes but I cant. I just love it to much....so vaping to me is more fulfilling than cigarettes. I hope to vape for many years. And never use tobacco again.

 

[eric]

I wasn't arguing the case, I was arguing Sun's statement. I can't argue that SE blew it in regards to Health Claims, but Njoy definitely stands to gain.

Even if for some reason the Judge doesn't deem the Njoy/SE case strong enough, there are many examples in American history of courts overruling current laws in the name of ethics. Take Jim Crow Laws for example. Our right to vape is granted by the Constitution, the FDA isn't.

I personally think we have this case won.

 

[DC2]

These things are everything their proponents have ever claimed them to be.
And they are everything their opponents have ever claimed them to be.

And if only common sense would prevail, we wouldn't even be talking about any of this.
My wife is a lawyer, and even she understands the absurdity of the profession.

 

[lotus14]

The Key was danger was here:

"Justice Department attorney Drake Cutini, representing the FDA, contended that the e-cigarette companies were marketing their products using health claims, including customer testimonials that the devices helped them quit smoking. “It’s not just specific claims,” Cutini said. “It’s the entire circumstances of marketing.”

Cutini argued the imputed use test for the "intended use" and if the Judge agrees with that, then the books are cooked.

The reason Cutini proffered the testimonials was to show exactly why the majority of use are using the e-cig--------to mitigate the dangers of smoking cigarettes. And really that is what we are doing.
Sun

So can't the Judge rule that specific claims can no longer be made unless the manufacturers want to get approved as NRTs? Remember Cheerios? Still on the shelf. I love 'em!

Regulation is inevitable - and in my opinion a good thing if it's done within reason. I still see our best route is testing for purity (should've been done long ago!) and a "reduced harm" categorization which should be fairly easy to prove.

Add childproof caps, warning labels, age restrictions, etc., and the greater good should easily outweigh the risks.

 

[Sun Vaporer]

So can't the Judge rule that specific claims can no longer be made unless the manufacturers want to get approved as NRTs? Remember Cheerios? Still on the shelf. I love 'em!

Regulation is inevitable - and in my opinion a good thing if it's done within reason. I still see our best route is testing for purity (should've been done long ago!) and a "reduced harm" categorization which should be fairly easy to prove.

Add childproof caps, warning labels, age restrictions, etc., and the greater good should easily outweigh the risks.

Lotus--the Judge has to make a determination based on the totality of the circumstances exactly what the "intended use" really is of an e-cig---not what is marketed, but rather what people are going to actually use them for. And we all for the most part, know that it is not to be able to smoke in a bar, rather it is to stop using harmful tobacco.

Sun

 

[harmony gardens]

So can't the Judge rule that specific claims can no longer be made unless the manufacturers want to get approved as NRTs? Remember Cheerios? Still on the shelf. I love 'em!

Regulation is inevitable - and in my opinion a good thing if it's done within reason. I still see our best route is testing for purity (should've been done long ago!) and a "reduced harm" categorization which should be fairly easy to prove.

Add childproof caps, warning labels, age restrictions, etc., and the greater good should easily outweigh the risks.

I agree completely. The main thing for us as consumers, is that each manufacturer is considered separately, and the bad apples don't spoil the whole bunch.

 

[Sun Vaporer]

I agree completely. The main thing for us as consumers, is that each manufacturer is considered separately, and the bad apples don't spoil the whole bunch.

Harmony--the marketing of e-cigs is what is on trial here, it is the FDA's jurisdictional powers. Marketing is not even being plead by the parties. It either is or is not a drug---how it is maketed is not in the pleadings. The case is far more reaching then just marketing claims.

Sun