Legal question

[Kimerpuff]

Hi, I am new to posting, been reading this forum for quite some time as my boyfriend purchased PV's for us.

After reading alot posts on the FDA - todays hearings and also going to their website to read what they have... I guess I am confused on the legalities pre-hearing... Are these legal to own at this time? Or just illegal to sell?

 

[JustJulie]

They are legal to own and buy. Thus far, it appears the only real enforcement action we're seeing is stopping some imports as they come into the country. It's hard to tell what the future will bring, but we're reasonably certain that possession will not be criminalized.

 

[Jim Davis]

They're still legal to sell and use.

 

[Kimerpuff]

I went to the FDA's website and in a pdf
which as a new member I cannot link hehe from the fda website, under e-cigarettes, the Smoking Everywhere, Inc. v. FDA, CA No.09-cv-0771 (D.D.C) to the breif ( the pdf I was reading)


the bottom of the first page it says "
As an unapproved drug or device, distribution of E-Cigarettes in commerce in the United States is prohibited. Thus, FDA properly concluded that the shipments of E-Cigarettes at issue here may be refused admission into the United States."

doesnt that mean it is illegal to buy?

I read through the pdf and saw no notation for ownership

 

[Jim Davis]

The FDA has been lying, cheating, and stealing to get e-cigs banned. First, I don't believe anyhting they say, and Second, I don't care what they say.

 

[JustJulie]

Without the actual link, it's hard to tell, but I think what you're seeing is the FDA's position . . . not what the court has actually ruled.

 

[Duckies]

The FDA can go after people who market and sell. They don't have the authority to make something "illegal". That is up to the legislature (either federal or state).

So far, only one state has said something about e-Cigs from a state enforcement perspective and that has been Oregon. All Oregon has done is come to an agreement with Smoking Everywhere and nJoy (2 out of of hundreds of suppliers) to stop selling these in Kiosks in the malls and in truck stops in that state. Oregon has said nothing about people who own or use -- only about the questionable health claims that SE employed and questionable sales practices by both potentially selling to minors.

This could change at any time, but that is the state of the state as it stands today.

 

[The Wiz]

The FDA has been lying, cheating, and stealing to get e-cigs banned. First, I don't believe anyhting they say, and Second, I don't care what they say.

Changing Jim Davis's name to "Big Jim Davis"...........I'm with you partner!!The Wiz!

 

[SLDS181]

I went to the FDA's website and in a pdf
which as a new member I cannot link hehe from the fda website, under e-cigarettes, the Smoking Everywhere, Inc. v. FDA, CA No.09-cv-0771 (D.D.C) to the breif ( the pdf I was reading)

Thats because this is their position, and not the law. Without a law or regulation in place, it is not illegal.

The FDA enforces existing laws, but has no authority to write them. This is why there is a court docket, why they have to defend their position. There is no specific law related to, limiting, or banning electronic cigarettes.

Again, the FDA has taken it upon themselves to decide that the device is within their realm. Whether that is true or not is for the courts to decide, at this point - though preferably with input from all the no-longer smokers out there saved by vaping.

So, kimerpuff, no, it is not illegal to purchase, sell, use, own, etc an electronic cigarette.

 

[Kimerpuff]

Thank you!

 

[annah]

I just wanted to ask for some clarification.. So without an actual law written, the only thing the FDA can do is ban the import and sale. So they cannot make it illegal to possess or use. So in theory, once you have it, it can't be illegal, and if supplies miraculously appeared at my house, they are ok to have/use.

 

[Jim Davis]

I just wanted to ask for some clarification.. So without an actual law written, the only thing the FDA can do is ban the import and sale. So they cannot make it illegal to possess or use. So in theory, once you have it, it can't be illegal, and if supplies miraculously appeared at my house, they are ok to have/use.

Basically right. Don't worry. I don't think the e-cig Police will be knocking down your door very soon. For every law, there are a hundred loop holes. Enjoy your e-cig.

 

[ramblingrose]

The FDA has been lying, cheating, and stealing to get e-cigs banned. First, I don't believe anyhting they say, and Second, I don't care what they say.

Works for me!

 

[Jim Davis]

Works for me!

Darn right. We have 20 million Illegal Aleins, unemployment, a$$holes trying to blow up airplanes, shootings, rapes, and robberies in record numbers, and these goobers are worried about my PV. I Fart in their general direction.

 

[SLDS181]

I just wanted to ask for some clarification.. So without an actual law written, the only thing the FDA can do is ban the import and sale. So they cannot make it illegal to possess or use. So in theory, once you have it, it can't be illegal, and if supplies miraculously appeared at my house, they are ok to have/use.

Yep!

And even their position on e-cigs and their ability to stop them from being imported is being taken into question. They are doing it under the Federal Food, Drug, and Cosmetic Act (FD&C), Section 5, Drugs & Devices. Most likely, section 516 - Banned Devices:

(a) General Rule. Whenever the Secretary finds, on the basis of all available data and information, that—
(1) a device intended for human use presents substantial deception or an unreasonable and substantial risk of illness or injury; and
(2) in the case of substantial deception or an unreasonable and substantial risk of illness or injury which the Secretary determined could be corrected or eliminated by labeling or change in labeling and with respect to which the Secretary provided written notice to the manufacturer specifying the deception or risk of illness or injury, the labeling or change in labeling to correct the deception or eliminate or reduce such risk, and the period within which such labeling or change in labeling was to be done, such labeling or change in labeling was not done within such period;


Effectively they have stated that since it is unproven that e-cigs can help, because they haven't conducted a study, and because there is no long term risk assessment, because these haven't existed long term, it meets the requirements of "Drugs & Devices".


Thats how I've read their statements.


Now, under no circumstances do I believe that the statements and claims made are unreasonable, contain a substantial deception, or significant risk or injury. In fact, I believe they save me from the significant risk & injury of the alternative, FDA approved cigarettes.


So, its the application of a law that is being question by SmokingEverywhere, because the FDA had goods seized at customs.

 

[HighTech]

I went to the FDA's website and in a pdf
which as a new member I cannot link hehe from the fda website, under e-cigarettes, the Smoking Everywhere, Inc. v. FDA, CA No.09-cv-0771 (D.D.C) to the breif ( the pdf I was reading)


the bottom of the first page it says "
As an unapproved drug or device, distribution of E-Cigarettes in commerce in the United States is prohibited. Thus, FDA properly concluded that the shipments of E-Cigarettes at issue here may be refused admission into the United States."

doesnt that mean it is illegal to buy?

I read through the pdf and saw no notation for ownership

Someone may want to check me on this, but somewhere in the back of my mind, I remember reading that the FDA's jurisdiction was over INTERSTATE sale and distribution...

Sun?

 

[Sun Vaporer]

Hi, I am new to posting, been reading this forum for quite some time as my boyfriend purchased PV's for us.

After reading alot posts on the FDA - todays hearings and also going to their website to read what they have... I guess I am confused on the legalities pre-hearing... Are these legal to own at this time? Or just illegal to sell?

The issue of ownership and use is not in challange and a whole different ballgame. That is legal. What is being challanged is the importation, sale, and marketing. So no need to be concered there.


Sun

 

[annah]

oh gosh. Well when you read the banned devices info- the whole thing just sounds stupid.

It seems like the closest comparison would be with cigarettes obviously, so therefore we should just need appropriate warning labels, like on cigarettes. Can we say "going overboard"?

I'm sure there's more to it than that- but with nic liquid only having food safe ingredients, and nicotine, I can't see how that could possibly be any more harmful than cigarettes. And it's certainly healthier for those worried about secondhand smoke.

I swear, some of these agencies make me wonder why they are allowed to waste our tax money on their paychecks.

 

[Jim Davis]

I swear, some of these agencies make me wonder why they are allowed to waste our tax money on their paychecks.

Read between the lines. It's all about the money. At this time, they're not collecting taxes on e-cigs. Need I say more?

 

[TropicalBob]

The FDA neither sets nor collects taxes. It regulates drugs -- which is what it is doing with the e-cig. It is a big leap to assume it's "all about the money." It's also insulting to the agency charged with overseeing your safety to think it would just look the other way when a new, addictive liquid drug comes on the market from Chinese makers. That's not realistic in the least.

The reality is that the FDA has said, quite publicly and to suppliers, that import and SALE of e-cigs and liquid is illegal. Period. No ifs, ands or claims needed. They are illegal to bring into the country and sell. But not to buy. Not to use. Not to own. That's a different legal game.

Just don't for a second think all is rosy. It's twilight in E-Cig Land. Follow the case on the Legal section of ECF.