Oregon AG's using Office to try to ban selling of 'E-cigarette'

[Sun Vaporer]

I don't believe this is true. The AG's office is going after the companies one at a time. If the njoy settlement was a blanket ban, they wouldn't have to take each one on a case by case basis.

And even if it is correct, there's still no ban in Oregon. People here can still legally order these devices over the Internet. They can still own them. They can still use them, in public.

Honestly, Sun, I'm concerned that you're muddying the water. As someone who lives here, it's very clear to me from the reporting and from the analysis that the settlement is focused exclusively on njoy and SE.

Surf--I really can not explain it in much simplier terms. The AG went after only NJOY and SE becasuse they are the only ones there. The AG can not discriminate in exercising its charge to enforce laws on some and not on others. If and when the AG identifies other entites selling e-cigs in their State, they will do the same with them. It is not that difficult a concept.

Sun

 

[LaceyUnderall]

But... here is the thing that Sun believes, and correct me if I am wrong here, the FDA, AG's, government whatever, are taking a stance on reasons other than marketing claims. Sun argues, as TB also argues, none of this has anything to do with marketing claims what-so-ever. They argue that this is because the electronic cigarette is a "new drug" and didn't go through the proper approval process.

Now, it IS a "new drug" if you are making marketing claims. However, Sun does not see it that way. He sees it only as a "new drug".

So Surf, if we keep that in mind... then it helps us see into Sun's argument as to why he would see a blanket ban. He doesn't see any of the verbage about claims in the AG's report. Only that the ecig is not an approved FDA product.

Sun, if I am incorrect, and TB for that matter as well, please correct. But per our discussions, this is where I would see your stance.

Edit: Wouldn't a blanket ban have to come from a result of taking us all to court? The AG's office can't just make up law can they? Don't they have to litigate and then present to their state congress what they have done and what they want to have done in order to pass a law?

 

[Surf Monkey]

You're still giving the wrong impression. E-cigarettes are NOT banned in Oregon. The settlement bans SALE of e-cigarettes IN Oregon. It does NOT bar people from buying e-cigarettes from out of state and it does not ban people from owning and using the devices. In fact, there are still retailers here who are selling the devices over the counter because the settlement was specific to Pilot Travel Centers, which has seven stores in Oregon, and TA Operating, which has four stores in Oregon. It may be applied to other retailers, but it hasn't yet.

So, again, let's get this straight: there is NO ban on e-cigarettes in Oregon. There is ONLY a ban on SELLING e-cigarettes in Oregon (if you accept Sun's statement that the settlement applies to all retailers.) Oregonians can buy e-cigarettes online or drive over the river and buy them in Washington. They can own them and use them without breaking ANY laws.

It's very important that people understand this distinction. Unless they're planning on setting up a retail business selling e-cigarettes nothing has changed. From the user's perspective e-cigarettes are still 100% legal here.

 

[Surf Monkey]

The AG's office can't just make up law can they?

It isn't a law as such. It's a court order that specifically addresses NJOY.

I understand how Sun is drawing the conclusions he's drawing, but I think he's off base when he asserts that there's a blanket ban here. He's confusing the "sale" with "ownership" of these devices and he's ignoring the fact that the court order is specific to NJOY, Pilot Travel Centers and TA Operating.

EDIT: Maybe "ignoring" is the wrong word. "Regarding in a different light" is probably more accurate.

 

[Surf Monkey]

Let me just restate this so that it's clear:

I can stand right in front of a police officer and use a PV in Oregon. I can stand right in front of a police officer and buy a PV on the Web. These things are not banned here. The only thing I may not be able to do is sell PVs commercially within the state, but judging by the fact that retailers are still stocking them at some locations I think it's clear that the state is not enforcing any kind of blanket ban on sales either.

 

[TheIllustratedMan]

I'm pretty sure that the AG's office does this:

1) Identify problem company (in this case, Smoking Everywhere and nJoy, the two most high profile store based electronic cigarette companies)
2) Contact problem company to inform them of problem and avenues of resolution
3) Receive reply (or lack thereof) from problem company
4) Act accordingly

What Sun is saying is that the AG's office has only gone after brick and mortar companies that it knows about. If (for instance) Lacey and her husband were to set up a kiosk selling Instead brand electronic cigarettes, and the AG's office found out about it, they would follow the above steps, where "problem company" becomes "Instead". Just because they haven't acted on other companies doesn't mean that they don't intend to. They may not know about others, there may not be others, or they may have not gotten to it yet.

The point Sun is trying to make is that the AG can't pick and choose who they feel is breaking the law when multiple people are all doing the same action. It would be like 5 people smoking in a bar and only 2 being asked to put it out.

[EDIT] and I'm pretty sure that they have no jurisdiction over internet companies.

 

[LaceyUnderall]

Lacey--Although not my thinking of how it should be, that is correct. As the FDA has stated, we really do not know to much about the e-cig and testing has to be done. My biggest concern is the flavoring---not the PG or nicotine.

And if you look at NJOY, although they make no heath claims or marketing claims that are out of line, Oregon still shut them down by settlement.

Sun

Sun -

No carcinogens is a health claim. The AG's office acted on nJoy after the FDA published its results. nJoy must now prove that their product does not contain carcinogens.

The liquid does contain carcinogens... however, does the vapor? As the user intakes the vapor, if there is no carcinogens in their vapor then they can back up their health claim.

Surf - Even from a suppliers perspective, there is nothing holding me back from selling to Oregon. If my claims are squeaky clean and I don't sell to minors, that's the real focus of the AG's stance, of which I can't disagree.

 

[Sun Vaporer]

It isn't a law as such. It's a court order that specifically addresses NJOY.

I understand how Sun is drawing the conclusions he's drawing, but I think he's off base when he asserts that there's a blanket ban here. He's confusing the "sale" with "ownership" of these devices and he's ignoring the fact that the court order is specific to NJOY, Pilot Travel Centers and TA Operating.

EDIT: Maybe "ignoring" is the wrong word. "Regarding in a different light" is probably more accurate.

Wish I was Surf---but there is no Court Order--it is a settlement agreement not to prosecute---big difference.

and if this is not a blanket ban, then I do not know what is. Oregon, does not even care about the FDA---they want to see the proof themselfs:

"The settlement announced today prohibits the sale of electronic cigarettes in Oregon until they are approved by FDA, or until a court rules the FDA does not have the authority to regulate electronic cigarettes. Even if courts decide that the FDA does not have regulation authority, the settlement stipulates that electronic cigarettes may not be sold in Oregon unless there is competent and reliable scientific evidence to support the product's safety claims. In addition, the companies must give the Attorney General advance notice that they intend to sell electronic cigarettes in Oregon, provide copies of all electronic cigarette advertising, and provide copies of the scientific studies they maintain substantiates their claims"

Sun

 

[LoneRanger]

Wow,This is getting good helping me pass the time!Use too njoy weekends- opps enjoy Now waiting for monday thru friday & judge Leon ruling. Thanks!

 

[Surf Monkey]

The point Sun is trying to make is that the AG can't pick and choose who they feel is breaking the law when multiple people are all doing the same action. It would be like 5 people smoking in a bar and only 2 being asked to put it out.

Right. But again, the terminology "blanket ban" is misleading. There is a court order that bars sales in specific locations. There may be additional court orders that bar sales in other locations too at some future date, but the salient point is that it bars SALES of the devices. Not ownership or use and not purchase of the devices from outside of the state. There is NO blanket ban on the devices here. There is simply an effort to bar SALES of the devices within the state.

 

[LaceyUnderall]

I'm pretty sure that the AG's office does this:

1) Identify problem company (in this case, Smoking Everywhere and nJoy, the two most high profile store based electronic cigarette companies)
2) Contact problem company to inform them of problem and avenues of resolution
3) Receive reply (or lack thereof) from problem company
4) Act accordingly

I would like to respectfully submit that we would need to add one portion to the logic... which seems rather correct.

Before 1... You would have to identify the problem. IE: A report to the AG's office comes in that a minor purchased an electronic cigarette. IE: A report to the AG's office comes in that a supplier is noting a certain promise or health claim.

IMHO, the AG's office is acting proper here. Just as the FDA acts proper when they stop companies from making health claims. They are simply asking for proof and in the OR situation... some jackas$ apparently sold to a minor which SHOULD be punishable.

 

[Surf Monkey]

Wish I was Surf---but there is no Court Order--it is a settlement agreement not to prosecute---big difference.

You're right. I misspoke. Not a court order. An out of court settlement. But still not a law.

and if this is not a blanket ban, then I do not know what is. Oregon, does not even care about the FDA---they want to see the proof themselfs:

A blanket ban would state that no company can sell PVs at any location within the state. A blanket ban would bar ownership and use of PVs. By using the term blanket ban you give the impression that PVs are illegal here. They're not. They're fully legal to own and use. It's CRITICAL that people understand that distinction.

 

[LaceyUnderall]

TheIllustratedMan----Thanks--you have it dead on and it would be hard to refute what is actually going on rather then what people would like to see going on.


Sun

As I noted in last post... would there not need to be a "Problem" to identify?

 

[Sun Vaporer]

Surf--noone ever talked about possession--you are correct there. We are talking about the importing, selling, and marketing of e-cigs. They are totally legal to own. Just like fireworks in many states--it is legal to own them, but illegal to sell them.

Sun

 

[Surf Monkey]

rather then what people would like to see going on.

Now you're just being insulting, Sun. This isn't a case of wishful thinking. It's a case of observing facts.

Fact: ownership of PVs is not illegal in Oregon.

Fact: purchase of PVs by Oregonians from sources outside the state is not illegal.

Fact: retailers including Smoking Everywhere are still selling PVs in Oregon.

Fact: only NJOY has pulled out of the whole state, something they did voluntarily as the settlement only barred them from selling through two specific retailers.

Your continued assertion that there's a blanket ban on PVs in Oregon is swiftly moving into the area of FUD. I think it's important that we stick with the facts. A lot of what you're asserting is conjecture.

 

[Surf Monkey]

Surf--noone ever talked about possession--you are correct there. We are talking about the importing, selling, and marketing of e-cigs. They are totally legal to own. Just like fireworks in many states--it is legal to own them, but illegal to sell them.

Sun

Except that it isn't illegal to sell them. The settlement barred NJOY from selling them in specific locations. Smoking Everywhere is still selling them here as are other companies. There is no law on the books in Oregon that mandates a blanket ban on sales. If there was, the AG wouldn't have to bother with suing SE. They'd simply send the police to their retail locations and haul them off to jail.

 

[TheIllustratedMan]

As I noted in last post... would there not need to be a "Problem" to identify?

Yes, but the problem is independent of the companies. There is an overall idea that electronic cigarettes may not be imported, sold, or marketed in the United States due to being an unapproved drug requiring regulation by the FDA. The Oregon Attorney General only has jurisdiction in a specific slice of the United States (namely Oregon), and therefore is exercising his powers in that slice to uphold the law of the United States (and by extension Oregon) as he knows it. Obviously, that overall idea is in contention, and he may have jumped the gun a bit.

 

[LaceyUnderall]

Lacey--the language is quite clear--if you are in Oregon, this is the law of the land for now---all the AG's office needs to identify is that you are a Seller in their boaders--

The settlement announced today prohibits the sale of electronic cigarettes in Oregon until they are approved by FDA, or until a court rules the FDA does not have the authority to regulate electronic cigarettes. Even if courts decide that the FDA does not have regulation authority, the settlement stipulates that electronic cigarettes may not be sold in Oregon unless there is competent and reliable scientific evidence to support the product's safety claims

Sun

And again, I assert that I am not a part of that settlement. That settlement was made between nJoy and two operating facilities. I have nothing to do with it. Neither does Smoking Everywhere.

And to play devils advocate against myself... Say you are right that electronic cigarettes cannot be sold in Oregon regardless of the company, one would have to look that the very same verbage: the settlement stipulates that electronic cigarettes may not be sold in Oregon unless there is competent and reliable scientific evidence to support the product's safety claims

If you don't make any claims regarding safety, then how do you back up claims that are not being made? You can't! It's simple... you sell!

 

[HighTech]

The AG can not discriminate in exercising its charge to enforce laws on some and not on others.
Sun

You are correct. THE LAWS. E-cigs are NOT against the law and therefore the AG has no legal basis to ban them. The AG went after SE for marketing claims and slipped Njoy in on the deal. This is all based on the AGs interpretation that e-cigs are a drug/device that falls under FDA jurisdiction, and that has not, as of yet, been substantiated.

 

[Surf Monkey]

You are correct. THE LAWS. E-cigs are NOT against the law and therefore the AG has no legal basis to ban them. The AG went after SE for marketing claims and slipped Njoy in on the deal. This is all based on the AGs interpretation that e-cigs are a drug/device that falls under FDA jurisdiction, and that has not, as of yet, been substantiated.

Exactly correct.