Garblesnarf, dream on. Please read or skim or refer to the context of that in the thread over there. It's the implications of the continued stay that are of concern. Nothing to do with regulating the nicotine used in the juice. I'm tired and this may be somewhat poorly assembled, but OK, poorly written 101 intro for those new to the issue (apologies to those who've been following it, i really AM pooped):
The FDA intends to ban import of both juice and hardware from abroad, and stateside manufacture, sale and distribution of e-cigarette hardware, liquid, the works. (Note: The overseas shipping companies would certainly refuse to ship to the US if an embargo goes down - they are huge and ship many goods. They'd lose their license. Credit card companies would have to follow Paypal's lead and refuse to be used for ecig purchases, also. Basically, shipments from abroad and within the US would be halted. Or halted enough that it wouldn't be sufficiently profitable for a visible company to try to pursue manufacture, marketing, etc. - of an essentially illegal product.)
Even small purchases from small companies (and there not very many, really) would be confiscated when discovered . (US postal service would of course be instructed to seize, and list of vendors would be easily named... of course many little orders would slip thru, but what exactly would all of this mess do to, say, V4L? Our beloved Steve would suddenly be vulnerable to legal prosecution for manufacturing, importing, advertising, shipping...) Anyway, FDA wants it off the market, the whole deal, period. (Possession - and by then that would be DIY with hardware and liquid - are not in play.) This has been going on for some time, and it's not an unlikely outcome at all, though not a certain one.
In very brief, two large ecig manufacturerers, NJOY and Smoking everywhere, were having their shipments seized, which the FDA can do whenever it wants to, because ecigs are not regulated. They took this to Fed court, (5/09? earlier?) saying that as ecigs are in the same category as recreational tobacco products (the best approach), the FDA was overstepping its jurisdiction, and imposing intolerable damage upon their companies.
The FDA responded by saying that ecigs are drug/device combinations, and therefore subject to their approval and regulation before they can be legally imported, manufactured or marketed. They also claimed various possible ill-effects, largely debunked elsewhere but still maintained by the FDA. (The cessation angle is a poor strategy, and not used by the ecig companies, as this of course would subject ecig manufacture, marketing etc. to control under pharma, and the regulatory process would put them out of biz - it's hugely expensive, takes years, and etc..) (It's a lot more complicated than that, but that's the jist.) The FDA also cited an act (the FDCA) which expands FDA's jurisdiction to regulate any new nicotine/tobacco-containing products. (Big Tobacco is safe. Nicotine water was banned. Snus, etc., got grandfathered in.).
They actually don't come out and say they want a ban - they just say that the product has to go thru an approval process, and would be banned until those requirements were satisfied (at manufacturer's cost - ruinously expensive and time-consuming) and then MIGHT be approved, after years, and then strictly regulated, and etc.. It would be a de facto ban.
As this news came down, in 2009, Ebay etc. stopped selling them, and PayPal stopped permitting ecigs to be sold thru their process.
Basically, the FDA wants all forms of nicotine banned except for analogs (tax $$) and pharma produced cessation products ($$). Against them (and Big Tobacco, and Pharma), stand a truly relatively tiny population of small businesses and enthusiastic users, with no lobbying funds to speak of, no significant lobby, and not even the money to hire a pro PR outfit, as someone pointed out.
After hearing arguments from both sides, The Federal Judge (who apparently has a thing against the FDA, fortunately for us for the moment) surprisingly ruled against the FDA (in Jan.2010). (At one level. This was by no means a final ruling.).
FDA appealed for a stay. The stay hung for a (possibly/probably deliberate) very long time while the states began to put up their own anti-ecig bills. There has been encouraging news there, but new bills are already being assembled. (I just realized that this is too much to summarize further, as I'm pooped, and will refer anyone who is still hanging in there to aforementioned forum to fill in the rest.) Meanwhile, the big wheels are turning slowly and patiently at the top.
The new news is that the DC court of Appeals ruled yesterday granting the FDA a continued stay, saying that the FDA had met its burden of a "high likelihood of success.". This means that they can keep on blocking/seizing shipments at will. Then the Appeals court will uphold, reverse or modify Judge Leon's ruling. Then that will probably be appealed, if SE and ENJOY have the resources to continue; if the ruling is against FDA, they will continue. The Appeals court makes the final decision, not Leon. And the phrase "the FDA has met it's burden of a high likelihood of success", from the top, is NOT good, no how, no way.
NJOY and SE can only afford so much of this and may drop out of the game, the states will very probably continue to reintroduce ban bills, vendors might be increasingly harassed by seizures, and by the time the case is finally settled, (very likely, in some people's minds, in favor of FDA, since the Appeals Court approved the FDA's argument for the stay - which generally seems to indicate that they think the FDA will win) there may not be not much left to ban.
SV sees this as terrible news. There are some more new posts arguing that it might not be. I would like to be optimistic, but ...
I am an ex-smoker and will not go back! Arghhh!
