Question for the Lawyers

[lonercom]

Should a state of the FDA impose a ban might a case be made similar to Roe V Wade? 14th ammendment; Substantive Due Process and 9th Ammendment "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" Right to Privacy?

In addition, could the sponsors of such legislation as well as supporting organizations (ALA, AHA,ASH) corporately and Board Members individually and their contributors be held civilly liable for conspiring to violate said Constitutional protections?

If so, lets start the due process...

 

[woolfe99]

While I'd like you to be correct about this, I'm afraid it isn't an issue of Constitutional dimension. The federal government and states already ban all kinds of drugs and regulate others and none of that has ever been ruled unconstitional. This issue comes down to one of statutory interpretation, specifically, whether the FDA can regulate e-cigs as a "drug or device" and hence, ban them until full scale clinical trials have been conducted. That, in turn, depends on how the court interprets a statute, not the Constitution.

- wolf

 

[D103]

Let me preface this by recognizing I am probably over simplifying things and may very well be overlooking important facts as well; that said, I can't help but think that the FDA has themselves in somewhat of a quandry here - if they attempt to classify electronic cigarettes as a "medical device" it does not hold up to those standards (their own standards) and if they try to claim it is a medical device by virtue of the fact that it is a product that is ingested, that contains a known addictive substance which alters, mood, body function and cognition and has been shown to be 'harmful' when "abused".
If this be their claim then I submit that coffee too should be classified a medical device because it meets the very same above noted criteria. Also the electronic cigarette is not marketed nor is it intended to be a smoking cessation product - this was clearly articulated in Judge Leon's ruling. Now if they classify it as a tobacco product all they can do is regulate it - they would not be able to ban it outright with this classification because they would then also have to ban tobacco cigarettes as well and as many have pointed out before, "...that't ain't happening..." Anyone have thoughts on this, what have I missed?

 

[kristin]

Should a state of the FDA impose a ban might a case be made similar to Roe V Wade? 14th ammendment; Substantive Due Process and 9th Ammendment "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" Right to Privacy?

In addition, could the sponsors of such legislation as well as supporting organizations (ALA, AHA,ASH) corporately and Board Members individually and their contributors be held civilly liable for conspiring to violate said Constitutional protections?

If so, lets start the due process...

I'm going to let the lawyer types confirm, but vaping/smoking is not a "right" and therefore the same standards won't apply.

That said, it could be argued that we, as vapers, are being discrminated against by way of a double standard.

1. Nicotine is a legal substance.
2. Inhaling nicotine is legal.
3. Selling a (dangerous) product that allows people to inhale nicotine is legal.
4. Vaping and ecigs are a way to inhale nicotine.
5. If tobacco companies are allowed to sell and smokers are allowed inhale nicotine, why aren't ecig companies/vapers allowed the same right?

It's like allowing Budweiser, but banning microbrewery beer, because they "don't know what's in it."

I just don't see how the FDA/ALA can win this argument so long as traditional cigarettes are on the market??

 

[Sun Vaporer]

lonercom---People most always confuse a "right" from a "privilege"
---Driving a car is a privilege. Bearing children is a judically created right. Most "rights" are in fact judically created by the Court's use of its Substantive Due Process powers. Most rights are not enumerated in the Constitution. While you have an enumerated right to declare bankruptcy, you have a judically created right to live with people other then your family.

This case is not about a "right", rather it is about what catagory the Court is going to place the e-cig in based on statutory construction.

Sun

 

[Windsage]

The reach of the FDA is very limited actually as far as substances are concerned. The FDA has the charge of regulating drugs as legally defined. To qualify as a drug, a substance must treat a disease. This is why the pharmaceutical industry has been busy for years placing an illness name on everything from "penile dysfunction" to just plain old feeling kind of down.

In light of that, the FDA has been careful to state in every statement the fact that they consider Nicotine to be a drug used for nicotine dependence. They are able to do this because pharmaceutical companies needed it classified that way to be able to create prescription drugs that were noting more than the original addictive substance.

This is actually an interesting point because in no other addiction is the actual object of the addition considered a treatment. If this were possible then I could do some studies and patent the use of Brothels to treat sex addiction, or casinos could bill my health insurance for tapering me off at the craps tables. Can I get some pain pills to help me quit pain pills? Of course not. That's not a treatment.

No one has ever fought with them over the classification of nicotine as a medication, because no one cared really. Technically it would not stand up as a drug because its sole use is to CONTINUE an addition not to treat it.

All of the approved "treatments" include with their nicotine a tapering off plan that creates an action plan toward removing the addiction. The nicotine is actually not part of the treatment, but is a comfort item.

In the end many of the people that actually quit smoking using one of these approved items actually end up addicted to the approved item in what is referred to as an off-scrip use. Even Pfizer has huge bold print in their documentation for their inhaler that there is real risk of addition to the inhaler.

Once you remove this nonexistent "medical use" for nicotine, then you no longer have a drug or a drug delivery device, and since the FDA has strongly opposed classifying e-cigs as a tobacco product, it kind of creates a catch 22 for them.

Of course it would cost tons and take years to fight it. Its better to make some deal that tries to accommodate everyone. In the end I hope that is what happens. Everyone knows some regulation will occur at some level, but an out right ban is stupid.

 

[lonercom]

Thanks for all of the great opinions. What I am trying to determine is a way to hold legislators, and special interest groups collevtively civilly liable for conspiring to deprive me of my liberty. My right to consume an otherwise legal substance and discriminate against me by causing me public ridicule and humiliation.

If Roe V Wade made the termination of a pregnancy a privacy issue, overeruling the Texas laws against abortion and the US Civil rights movement led to desegregation and I am being denied these same rights because of my medical condition; addiction. I want to sue everyone that published an opinion or financed the organizaions that are doing this as well as the legislators that sponsored the bills.

Quit looking at the FDA position and wringing our hands over drug delivery device or tobacco product and look at this from an ambulance chasing, rainmaker, tort action. Once the papers are served and the case is on a docket, we can garner significant publicity and start exercising our discovery rights to subpoena every frickin record they have and publicly expose these creeps for the frauds that they are. Not only will we destroy their fundraising ability we can ruin their credibility with actual science.

Let's stop worrying and letter writing and start litigating. I will move to New York and be the first one to break their law.

 

[rothenbj]

Let me preface this by recognizing I am probably over simplifying things and may very well be overlooking important facts as well; that said, I can't help but think that the FDA has themselves in somewhat of a quandry here - if they attempt to classify electronic cigarettes as a "medical device" it does not hold up to those standards (their own standards) and if they try to claim it is a medical device by virtue of the fact that it is a prodcut that is ingested, that contains a known addictive substance which alters, mood, body function and cognition and has been shown to be 'harmful' when "abused".
If this be their claim then I submit that coffee too should be classified a medical device because it meets the very same above noted criteria. Also the electronic cigarette is not marketed nor is it intended to be a smoking cessation product - this was clearly articulated in Judge Leon's ruling. Now if they classify it as a tobacco product all they can do is regulate it - they would not be able to ban it outright with this classification because they would then also have to ban tobacco cigarettes as well and as many have pointed out before, "...that't ain't happening..." Anyone have thoughts on this, what have I missed?

Just a slight change in your post. Caffeine would be the drug. The drug device would be the Coffee pot, coffee cup and the saucer to catch drippings. Then if you included sugar in the ban, very much an addictive drug, you need to add the spoons and stirrers. Ban their importation and insist all of it gets reviewed by the FDA. Oh where have you gone Starbucks and Wawa?

 

[woolfe99]

Thanks for all of the great opinions. What I am trying to determine is a way to hold legislators, and special interest groups collevtively civilly liable for conspiring to deprive me of my liberty. My right to consume an otherwise legal substance and discriminate against me by causing me public ridicule and humiliation.

If Roe V Wade made the termination of a pregnancy a privacy issue, overeruling the Texas laws against abortion and the US Civil rights movement led to desegregation and I am being denied these same rights because of my medical condition; addiction. I want to sue everyone that published an opinion or financed the organizaions that are doing this as well as the legislators that sponsored the bills.

Quit looking at the FDA position and wringing our hands over drug delivery device or tobacco product and look at this from an ambulance chasing, rainmaker, tort action. Once the papers are served and the case is on a docket, we can garner significant publicity and start exercising our discovery rights to subpoena every frickin record they have and publicly expose these creeps for the frauds that they are. Not only will we destroy their fundraising ability we can ruin their credibility with actual science.

Let's stop worrying and letter writing and start litigating. I will move to New York and be the first one to break their law.

There could be a tort action in here somewhere, but trust me, it won't be on Constitutional grounds. As someone said above, "rights" are created by the High Court based on substantive due process (the 14th amendment), or else they are specifically enumerated in the Constitution (i.e. free speech.) If the Court held that nicotine consumption was a "right," they'd have to rule unconstitional every kind of drug ban. So far as discrimination, on the Constitutional level, that is the equal protection clause of the 14th amendment, which affords protection mainly to members of traditionally disadvantaged classes, i.e. certain ethnic groups, etc.

The premise of a possible tort action is fraud/misrepresentation/false advertising, which either causes people to stay away from e-cigs, or causes government action to be taken to ban them, such as what is going on in NY right now. I think there actually may be something to that. After looking at the issue pretty closely these past several weeks, the FDA, as well as the ALA and several other non-governmental organizations, appear to be quite intentionally misleading the public about the comparative risks here. So far as the non-governmental organizations go, there could be tort liability, or at least grounds to enjoin them from further misrepresentation.

The FDA and other governmental agencies tend to have immunities from these kinds of proceedings so the remedy there is generally a media and political one.

- wolf

 

[kristin]

We may not have a legal standing, but we can withdraw our donations and support. I'm putting the finishing touches on a strong petition - stay tuned for a link!!

 

[D103]

Just a slight change in your post. Caffeine would be the drug. The drug device would be the Coffee pot, coffee cup and the saucer to catch drippings. Then if you included sugar in the ban, very much an addictive drug, you need to add the spoons and stirrers. Ban their importation and insist all of it gets reviewed by the FDA. Oh where have you gone Starbucks and Wawa?

Sir, you are correct thanks for catching that! Just think a "Mr. Coffee" and a crack pipe in bed together who'd a thunk!

 

[beebopnjazz]

Kristin - I believe a petition could indicate to whatever authorities it's sent to that we are not a few hundred people. From a legal standpoint electronic signing of a petition is invalid as anyone can claim they are anyone else. One could actually use their telephone book and list names and addresses claiming they are the individual and are signing the petition for its intended purpose. I know there are ways to have legitimate digital signatures, however, I am not aware as to how they are legitimized.

Anyone know?

 

[lonercom]

...
The premise of a possible tort action is fraud/misrepresentation/false advertising, which either causes people to stay away from e-cigs, or causes government action to be taken to ban them, such as what is going on in NY right now. I think there actually may be something to that. After looking at the issue pretty closely these past several weeks, the FDA, as well as the ALA and several other non-governmental organizations, appear to be quite intentionally misleading the public about the comparative risks here. So far as the non-governmental organizations go, there could be tort liability, or at least grounds to enjoin them from further misrepresentation. ...- wolf

3 Questions Woolfe:

1. Are you a member in good standing of the Bar?
2. How much do you require for a retainer and what address shall I send it to?
3. When can we start the proceedings?

 

[Tampa2]

Great insight Woolfe99. I personally think that we'd have a great chance in a Florida Courtroom. But the Feds don't play by the same rules. And those people that think they still have rights haven't been in a Federal Courtroom. The only rules are theirs. Kudo's to SE, though. For standing up for their Rights. I never thought they would have gotten this far. My hat's off to you fellas.

 

[Devilooman]

I was just thinking that their own "study" proves these are safer than cigarettes and just as safe as the "approved" NRT's. Could we not embrace their study and point out the statistics that prove OUR point?

 

[dyna1269]

Its crazy to see all the negative attention this is getting and its actually helping people. People are getting paid off, plain & simple! I wrote about this before, I was in the dietary supplement business selling fat burners. The ECA stack, Ephedra, Caffeine & Aspirin. People actually died from using these over the counter pills which is herbal and these products thrived for years until they were banned. They went to the black market and then they were back on the market.
These companies also made 100's of millions of dollars and there legal teams were hard at work to keep them on the market.
That's where the FDA should have some say, not here!