Intolerant Dems in Congress urge State AGs to sue e-cig companies, include e-cigs in cigarette settlements, classify e-cigs as cigarettes

[Bill Godshall]

[h=1]Democratic Leaders Urge State Attorneys General to Bring E-Cigarettes Under tobacco Master Settlement Agreement[/h]http://democrats.energycommerce.house.gov/index.php?http://democrats.energycommerce.hou...nder-tobacco-master-sett#.Uvul-e9TZtE.twitter

Feb 12, 2014

Today Rep. Henry A. Waxman, Sen. Tom Harkin, and Rep. Peter Welch sent a letter to California Attorney General Kamala D. Harris, Iowa Attorney General Tom Miller, and Vermont Attorney General William H. Sorrell urging them to classify electronic cigarettes as cigarettes under the tobacco Master Settlement Agreement (MSA) to prevent e-cigarette companies from targeting youth and getting them addicted to their products.


Data from the Centers for Disease Control and Prevention finds that use of e-cigarettes by children is increasing rapidly and could serve as a gateway to nicotine addiction. Unlike conventional cigarettes, e-cigarettes are not subject to restrictions on advertising and marketing. Classifying e-cigarettes as cigarettes under the MSA would prohibit tobacco companies from targeting youth in advertising and marketing of these products.

In the letter the members write, “We have admiration for your efforts to protect children from the dangers of tobacco. That is why we hope you will consider taking this much-needed step in the ongoing battle against tobacco products. The MSA gives you a powerful tool to stop e-cigarette makers from targeting youth, and we urge you to consider using it.”

As one who urged the State AGs to sue cigarette companies beginning in 1994, and who filed litigation against the PA AG and large cigarette companies in 1999 to amend/improve PA's tobacco settlement, I'm not aware of any legal theory or legal precedents whereby third parties (i.g. e-cig companies) can be legally forced to participate in lawsuit settlements between two other parties (i.e. State AGs and large cigarette companies).

To my knowledge (and I suspect most lawyer's knowledge), the only way State AGs can establish a settlement with e-cig companies is if they first sue the companies. But since there is no actual evidence of the false and misleading claims against e-cig companies, if any State AGs sue some e-cig companies, they better be prepared for losing in court (because they have no case). But if several different State AGs sue some e-cig companies, they'll try to bully the e-cig companies to settle their frivolous lawsuits).

While the litigation risk for e-cig companies is very low, in the bigger picture, the underlying purpose of this letter to State AGs and this press release is to lobby for FDA e-cig ban/regs, and for more state/local laws to ban e-cig use and marketing to adults.

 

[low_tar_neil]

I'm speechless.

 

[Uma]

I'm speechless.

Me too.
Maybe we need to petition for the CDC to stop their disinformation and make a press release statement of the real facts. The FDA too. And Slantzz. And the ALA. But let's start with the CDC...
Or alls of them.
Flood the petition sites...

 

[Technohydra]

In a way, I actually hope that one of the AG's tries this; I would love to have the legal precedent set that this tactic can't work, and there's no faster way to do that then to lose a case in federal court. On the other hand, there is some good news. I understand we will be losing Harkin as an opponent in the near future (if I'm remembering this correctly), and one has to wonder if this group is kinda viewed in the legal circles as those parents that think that rap music will send you to hell; a little off tilt to everyone else? I would love to think this is the case, as from my perspective, it looks a bit wacko.

I have this vision that all these people do all day is sit around with legal texts and try to find every loophole possible to further the agenda, even if it will fail. There is no 'bad' publicity for a 'just cause', and so forth. The upside to me is there are precious few avenues left for them to try to stuff vaping into anymore, the supply has been exhausted and defeated surprisingly well and early.

In my mind (which is elemental chaos made substant), this is hopefully one of the last impotent drops falling after what was a determined stream of tort. The major concerns to me are still the FDA (which I am more optimistic than I should be about) and the attempted kneecappings like the California shipment bans. I would appreciate a bit of an analysis from Bill as to what he thinks the true scope and risk of this move by the politico is, as this is an interesting, and seemingly desperate, maneuver by what I'm hoping is a dying breed. This tactic interests me, and I'd like a look at the larger picture from your lookout stand.

As always, thanks to Mr. Godshall for his vigilance and great works for us. You and I don't always agree, but we are always fighting for the same goals, and I salute you.

 

[skoony]

please some uoload a facepalm emoticon for this site.
regards
mke

 

[Asmo6]

These guys are just setting up the domino's ahead of time to bend the e-cig world over and suck revenue from them like the vampires they are. This is a preemptive effort.

Someone is looking at the increasing popularity of e-cigs and they need to demonize them, and turn them into a cash filled pinata they can beat to death like they do big tobacco. There is a reason why they are so quickly trying to shove everyone into the same basket. It's ingenious - stupidity. Reality has been completely removed.

Better watch asking for it to happen and set a precedent. Money wins court battles not facts. Which e-cig companies are vetted in hearings and have deep enough pockets to fight one of these AG battles in fed court? Really want to take that chance?

The whole, "the truth will triumph, and facts will rule the day" business ended at 4 O'clock when your cartoons were done for the day. Real life is a dirty - and often times intentionally convoluted place.

They are getting there ducks in a row and testing boundaries.

Seat belts and helmets kids...

 

[Roger_Lafayette]

As one who urged the State AGs to sue cigarette companies beginning in 1994, and who filed litigation against the PA AG and large cigarette companies in 1999 to amend/improve PA's tobacco settlement, I'm not aware of any legal theory or legal precedents whereby third parties (i.g. e-cig companies) can be legally forced to participate in lawsuit settlements between two other parties (i.e. State AGs and large cigarette companies).

To my knowledge (and I suspect most lawyer's knowledge), the only way State AGs can establish a settlement with e-cig companies is if they first sue the companies. But since there is no actual evidence of the false and misleading claims against e-cig companies, if any State AGs sue some e-cig companies, they better be prepared for losing in court (because they have no case). But if several different State AGs sue some e-cig companies, they'll try to bully the e-cig companies to settle their frivolous lawsuits).

This is also being discussed in the media forum. There are three things the state A/Gs could (allegedly) do:

1) Threaten to apply the "model escrow statutes" against vaping manufacturers who aren't parties to the settlement (either as OPMs or SPMs) and assess the per-cigarette taxes specified by these statutes and the MSA. How exactly they could do that is beyond me, unless they want to treat a typical all-in-one as one or more packs of cigarettes, and/or apply some kind of standard to e-juice, such as 3ml = 1 pack or something like that.

2) Apply the "model escrow statutes" against OPMs - the three obvious targets being Altria (PMI), Reynolds, and of course Lorillard.

In both of the above cases, the demand for extra taxes (or requests for injunctive relief) would be brought under cover of those statutes which incorporate the MSA by ref. The justification would be improper marketing practices (including flavored e-juice).

3) Apply some of the funds for research and education to PVs. I.e. for scare-mongering PSAs and advertising campaigns generally, as well as to bankroll junk studies.

I'm not saying that any of these things make sense, and/or might pass legal muster. But this is what they (Harkin etc.) are asking for - premised on the notion that marking vaping devices and e-liquid is covered by the MSA and associated model escrow statutes (because they either contain nicotine and/or resemble cigarettes).

Clearlly this equating of PVs and analog cigarettes runs into trouble given that cigars and pipe tobacco were never covered by the MSA, not to mention the fact that not all PVs contain nicotine. And if it were compatible with the intent of the MSA, or the legislative intent of the "model escrow statutes," then surely there would be scant reason for the states to separately legislate (e.g.) minor sales bans or taxes.

What I can say is that if the states were to send PV manufacturers a hefty tax bill based on those arguments, then of course the PV mfr.s would have to "pay under protest," and then take the initiative to sue the states. Otherwise the states would try to start putting liens on and/or siezing their assets.

 

[powerband]

Facepalm

 

[Technohydra]

These guys are just setting up the domino's ahead of time to bend the e-cig world over and suck revenue from them like the vampires they are. This is a preemptive effort.

Someone is looking at the increasing popularity of e-cigs and they need to demonize them, and turn them into a cash filled pinata they can beat to death like they do big tobacco. There is a reason why they are so quickly trying to shove everyone into the same basket. It's ingenious - stupidity. Reality has been completely removed.

Better watch asking for it to happen and set a precedent. Money wins court battles not facts. Which e-cig companies are vetted in hearings and have deep enough pockets to fight one of these AG battles in fed court? Really want to take that chance?

The whole, "the truth will triumph, and facts will rule the day" business ended at 4 O'clock when your cartoons were done for the day. Real life is a dirty - and often times intentionally convoluted place.

They are getting there ducks in a row and testing boundaries.

Seat belts and helmets kids...

I actually only partially agree with this, to be fair. Yes, we are mixing in politics, which muddies the court waters. However, money isn't the only factor in court battles, the facts actually do matter. Reason being , in a 'real life' court scenario, if a judge makes a ruling that contradicts the legal statutes, they can either be brought up on judicial review or simply flat-out disbarred and lose their careers permantly.

Additionally, a ruling which violates the due process of one or both parties can be reviewed and overturned by the supreme court circuits, and while far from ideal, this can still equate out to a long-arm victory.

In my opinion, the attempt to draw the ecig 'industy' into an established ruling is the equivalent of you being sued for wrongful death when your next door neighbor is the person that was solely involved in the fatality; the industry has no part or liability in the alleged harm that took place before the industry was even in existance. I am unaware of a legal strategy that would place someone elses civil burden on an uninvolved party. A suit of this type would almost certainly fail, if not be dismissed out of hand as frivolous.

I maintain that the sky is not in fact falling, but it is a bit cloudy. And with all cloudy skies, we need to keep watch for violent storms on the horizon. As Bill said, I severly doubt this is a real threat as it stands now, but it does bear watching.

 

[dr g]

Ugh, it's hard to see democrats who usually do not get things so wrong on matters of science and public health, get this so very wrong. Especially waxman, he has gone over the edge on this one. I mean he's a firebreather to begin with but now he's going to burn his own and as a progressive who has appreciated some of his strong stands in the past, this one actually has me happy he's leaving. That's bad news for the party and the country.

 

[LEDBETTER122]

I have yet to see a Democrat get something right

-Obamacare
-"We didn't know about the NSA"
-"We didn't know about the calls on Bengazi"
-The Iran Nuclear "Deal"
-Obama voted four times against legislation to protect and care for infants accidentally born alive during late-term abortions.(killing a Born living breathing child)
-Fast and Furious
-Obamacare Website Does not work
-IRS targeting Tea Party groups
- Bloomberg tried to ban big sodas
-Threatening Isreal by sending out warships with Hundreds of Cruise missles
-Attempt to ban Assault Rifles

The list goes on and on and on and on, and this is just in the past 1-4 years. So this is really no surprise to me, its just another nick in the chain.

 

[skoony]

Facepalm

how did you do that?

 

[NorthOfAtlanta]

how did you do that?

skoony, click on the smiley face at the top of the quick reply box for a group of clickable emoticons.

 

[vaperature]

Personally I don't see the Republicans coming to the rescue. The only argument I've ever seen in defense of that is that Fox News has on a few occasions taken what appears to be a "pro-vaping" stance. But if you look closely, they aren't reporting about ECF, or Kanger, or Provari, or any of the wonderful e-liquid manufacturers out there. They're reporting about store bought cigalikes made by Big Tobacco. When I see the Republican politicians coming out defiantly in support of vaping rights, then I'll consider this a "Democrat" anomaly. Otherwise it's the politicians in general, not the party they belong to.

 

[Roger_Lafayette]

I have yet to see a Democrat get something right <snip>

It's worth mentioning that the letter is addressed to Tom Miller (R), the IA A/G who is agitating for a vaping=smoking bill in the IA legislature (including taxation as well as use). Many GOP local pols from Gov. on down have supported anti-vaping laws. Pam Bondi (R), the A/G of FL, wants to ban flavors. There are plenty of others.

If every Dem politician in America ceased to exist, we'd still be dealing with anti-vaping laws in places like UT, ND, KY and other dark red states.

If you hate Democrats, it's easy to reduce this to a simple partisan issue.

Easy, simplistic ... and just as much at variance with the facts as some of the propaganda that we hear from the other side.

 

[Credo]

It's worth mentioning that the letter is addressed to Tom Miller (R), the IA A/G who is agitating for a vaping=smoking bill in the IA legislature (including taxation as well as use). Many GOP local pols from Gov. on down have supported anti-vaping laws. Pam Bondi (R), the A/G of FL, wants to ban flavors. There are plenty of others.

If every Dem politician in America ceased to exist, we'd still be dealing with anti-vaping laws in places like UT, ND, KY and other dark red states.

If you hate Democrats, it's easy to reduce this to a simple partisan issue.

Easy, simplistic ... and just as much at variance with the facts as some of the propaganda that we hear from the other side.

It's true...
In my state (Mississippi) I've had better luck keeping vaping from being lumped with 'smoking' by working with the young freshmen legislators (from both parties) who are not yet chairing powerful committees and entertaining the more wealthy/powerful lobbies. They get a little floor time, and the elders like to see how their young pati-wans get younger voters to the polls and handle the few 'pet issues' they're allowed to champion. It's just a matter of time until they climb up a few rungs in their party ladders and stop listening to the voters who sent them in the first place...but at least we get them on board for a term or two...and the younger ones HAVE made a difference in slowing down some of the 'ban and tax everything in sight' trend...at least in my state.

 

[Roger_Lafayette]

Ugh, it's hard to see democrats who usually do not get things so wrong on matters of science and public health, get this so very wrong. Especially waxman, he has gone over the edge on this one. I mean he's a firebreather to begin with but now he's going to burn his own and as a progressive who has appreciated some of his strong stands in the past, this one actually has me happy he's leaving. That's bad news for the party and the country.

I suggest you consider signing the petition: http://www.e-cigarette-forum.com/fo...oters-democratic-party-stop.html#post12201513

 

[Thursby]

in a 'real life' court scenario, if a judge makes a ruling that contradicts the legal statutes, they can either be brought up on judicial review or simply flat-out disbarred and lose their careers permantly.

There is nothing about this statement that is correct.

If a judge makes a ruling that is contradictory to law, they can be overturned on appeal. How difficult this will be to do depends on what the appropriate standard of review is. Federal judges are appointed for life; they don't get "disbarred and lose their careers permanently" just for being overturned, even for an abuse of discretion. They get disbarred and imprisoned for things like taking bribes... they don't get punished for being overturned.

Secondly, "judicial review" has absolutely nothing to do with punishing judges. It's the process by which the judicial branch can intervene and potentially invalidate actions taken by the executive and legislative branches.

 

[Technohydra]

The members of the US Supreme court are not judges, last I checked, they were justices. And who said anything about federal judges? If the court proceeding are to take place at a US Supreme Court level, then you are correct, and I will admit the point. Other than that, state supreme court justices are not necessarily appointed for life (in Texas, they are elected to staggered 6 years terms, as an example) and can be removed from office. And if a judge gets bounced from the supreme court of their state, how long do you think Iit will take for them to be disbarred shortly thereafter. As to 'judicial review', my terminology is incorrect, and I apologize for that. I was not referring to certiorari. You are correct in your definition. I am referring to a judge being brought before the disciplinary commitee. The wife was wanting to start the Valentines day celebrations a bit early last night, so I didn't have time to fact check myself (which is just as well, because we have no time for the dinner and date stuff today, someone needs divorce council...on Valentines day of all things).

Even if this one line was invalidated, my point is still just as valid as before; the exclusion does not affect the proximate reasoning.

Now let's both shut up and let everyone else have some good and constructive conversation. PM if you want to debate judicial ethics.

 

[Thursby]

The members of the US Supreme court are not judges, last I checked, they were justices. And who said anything about federal judges? If the court proceeding are to take place at a US Supreme Court level, then you are correct, and I will admit the point. Other than that, state supreme court justices are not necessarily appointed for life (in Texas, they are elected to staggered 6 years terms, as an example) and can be removed from office. And if a judge gets bounced from the supreme court of their state, how long do you think Iit will take for them to be disbarred shortly thereafter. As to 'judicial review', my terminology is incorrect, and I apologize for that. I was not referring to certiorari. You are correct in your definition. I am referring to a judge being brought before the disciplinary commitee. The wife was wanting to start the Valentines day celebrations a bit early last night, so I didn't have time to fact check myself (which is just as well, because we have no time for the dinner and date stuff today, someone needs divorce council...on Valentines day of all things).

Even if this one line was invalidated, my point is still just as valid as before; the exclusion does not affect the proximate reasoning.

Now let's both shut up and let everyone else have some good and constructive conversation. PM if you want to debate judicial ethics.

I don't want to debate judicial ethics, nor anything else for that matter. I am not trying pick a fight or derail the thread... I'm merely trying to put an end to the misinformation, because even your latest reply is rife with it. I humbly suggest that you stick to sharing information of which you have actual knowledge rather than misinform the good people of this forum.