Smoking Everywhere V. FDA Daily Docket Sheet Update--APPEAL's COURT ISSUES STAY

[HaploVoss]

Just for the record I have to say it. This whole deal really blows.

Thank you very much for the update Sun. I sure hope they sew this thing up soon so we can all go underground and start making our signs and banners for the march!

Take care all,
- Hap

 

[Sun Vaporer]

Sun V:

What on earth do you imagine brought this sudden appearance of competent legal representation on? Perhaps waiting for more or actual "proof" that FDA's "out-of-jurisdiction" action was in fact harming the plaintiff, as opposed to doing so in theory? Bump on the head? Checks cleared?

I'm entertaining all theories

-K

K--I would have to say that all of these collateral actions that are hinged on a ruling here and the fact that SE simply can not hang on much longer. They asked for relief 5 months ago to no avail yet. They are entitled to know where the Court is going with this case before it drives them right out of business with all the waiting.

Sun

 

[MrKai]

Ya know Hap...I can't believe that I am saying this...but I believe there is a chance, a slim chance, that we may not have to.

Rather, that we may have time. It will come up again, but if the judge, for want of a better phrase, 'buys into' the argument that FDA decided even before their "study" that eCigs had to go (they can never be re-marketed or relabeled to be compliant. A bold statement, I think), did not change this position after the new laws were passed tho eCigs could very well fit in to the harm reduction category, and that FDA was/is effectively attempting to do an 'end run' around the court via PR while this case is pending...I dunno...

SE definitely makes a good point that with FDA having their pals Shenanigans and Tom Foolery on speed-dial, unless they ARE stopped they will have effectively done the aforementioned 'end-run' around the court by "putting SE out of business" due to State and Locals following FDA's guidance which is at this very moment in contention.

Judicators aren't known to take kindly to that sort of thing On the other hand...

Of course, since the Judge did not grant the TRO, FDA is like "hey man, no one said we *couldn't* do our thing, and we believe we can anyway, so...*shrug* Good Luck!"

-K

 

[catwoman19]

Sun,

What has njoy done since this all started. They seem to be laying low. Big question is do you think this is a good thing from SE?

 

[Thulium]

Is SmokingEverywhere worth more dead than alive? If the Motion for Preliminary Injunction is dropped as moot because SmokingEverywhere goes bankrupt, what is left of this case? Would the FDA retain jurisdiction over "electronic cigarettes"? What about PV's that are not electronic cigarettes?

 

[Sun Vaporer]

Sun,

What has njoy done since this all started. They seem to be laying low. Big question is do you think this is a good thing from SE?

Cat--njoy also did their filings and all that could be said is in the record now.

SE makes a good move at this point in time as it puts Judge Leon back on track that this is a request for injuctive relief!!! SE is entitled to know where they stand after 5 months. We are all award of the reasons for the delays, but at this point in time, with that many collateral actions and fall outs occuring due to this case being in limbo, and SE hanging in to stay in business, it is time for a ruling and I am sure Judge Leon will see that.

Sun

 

[Sun Vaporer]

Is SmokingEverywhere worth more dead than alive? If the Motion for Preliminary Injunction is dropped as moot because SmokingEverywhere goes bankrupt, what is left of this case? Would the FDA retain jurisdiction over "electronic cigarettes"? What about PV's that are not electronic cigarettes?

Thulium --do not forget that NJOY is an intervening Plaintiff also. So both NJOY and SE would have to fold for this action to be dismissed----that is really not in the cards. We have come to far.


Sun

 

[BigJimW]

K--I would have to say that all of these collateral actions that are hinged on a ruling here and the fact that SE simply can not hang on much longer. They asked for relief 5 months ago to no avail yet. They are entitled to know where the Court is going with this case before it drives them right out of business with all the waiting.

Sun

Makes me wonder if that wasn't the FDAs plan all along. Drag it out as long as possible and force them out of business. Not much of a point to make a ruling if the plaintiff does not even exist anymore.

 

[Sun Vaporer]

Makes me wonder if that wasn't the FDAs plan all along. Drag it out as long as possible and force them out of business. Not much of a point to make a ruling if the plaintiff does not even exist anymore.

Big Jim--Shame on the Court then if that is the case as not acting on SE's motion is tantamount to a defacto-denial of their Motion for relief. I am surprised that SE did not file something similar already, but I guess they feel the timing is right now for no further delays.


Sun

 

[JebGipson]

Did anyone ever submit to the judge what other things this "antifreeze component" is in? namely, medicines, deodorant, and if I remember correctly isn't it used as a food preservative? With how much I am hearing this bold exaggeration (including 3 chastising conversations within the last week from anti-smoke members of the dependency treatment facility I volunteer for) using this whole "antifreeze" remark as a soap box to rain down their uneducated views, I am finding the media is spreading this thing like wildfire. Education about the truth of this component needs to be spread, in my opinion. At least that'd be one less pedestal for these groups to stand upon.

 

[Sun Vaporer]

Did anyone ever submit to the judge what other things this "antifreeze component" is in? namely, medicines, deodorant, and if I remember correctly isn't it used as a food preservative? With how much I am hearing this bold exaggeration (including 3 chastising conversations within the last week from anti-smoke members of the dependency treatment facility I volunteer for) using this whole "antifreeze" remark as a soap box to rain down their uneducated views, I am finding the media is spreading this thing like wildfire. Education about the truth of this component needs to be spread, in my opinion. At least that'd be one less pedestal for these groups to stand upon.

Jeb--it really makes no difference with regards to the case---this is a quesiton of jurisdiction, not saftey and Judge Leon can see though all the rubbish out there anyway I am sure.

Sun

 

[JebGipson]

...Now that's just rediculous to me... If it is about jurisdiction and not safety then why is the FDA throwing up such a hissy fit? I thought the point of that agency was for the public well being not to spend god knows how many tax dollars on this whole legal case.

 

[AngusATAT]

Cat--NJOY also did their filings and all that could be said is in the record now.

SE makes a good move at this point in time as it puts Judge Leon back on track that this is a request for injuctive relief!!! SE is entitled to know where they stand after 5 months. We are all award of the reasons for the delays, but at this point in time, with that many collateral actions and fall outs occuring due to this case being in limbo, and SE hanging in to stay in business, it is time for a ruling and I am sure Judge Leon will see that.

Sun

I don't know about anyone else, but I'd rather this whole thing just kept on getting delayed. The longer the delay, the longer I can keep getting my stuff. If the judge rules for the FDA, wouldn't that force a whole lot of our favorite US suppliers to go bye-bye?

 

[JebGipson]

I don't know about anyone else, but I'd rather this whole thing just kept on getting delayed. The longer the delay, the longer I can keep getting my stuff. If the judge rules for the FDA, wouldn't that force a whole lot of our favorite US suppliers to go bye-bye?

According to my understanding the issue yes, no more U.S. e-liquid suppliers. In fact a local small business (tobacco shack essentially) is biting their nails about this whole thing because they invested $10,000 into e-cig merchandise not counting perishables such as juices and still have well over half of their stock. If this ban goes through they have to bite the bullet, as they so put it.

 

[kinabaloo]

Oh. Someone there woke up About time. NOW they give the judge something to think about outside the realms of conspiracy theory. I have said several times that FDA's "Public Security Theater" and the abuse of their "go to" position ought to be focused upon and sanctioned by SOMEONE, because they effectively used this position with the oft-repeated and cited "antifreeze" rhetoric to influence public policy beyond their scope, even as their research was being attacked under peer review as being shoddy.

Very Interesting, indeed.

-K

... if the judge, for want of a better phrase, 'buys into' the argument that FDA decided even before their "study" that eCigs had to go (they can never be re-marketed or relabeled to be compliant. A bold statement, I think), did not change this position after the new laws were passed tho eCigs could very well fit in to the harm reduction category, and that FDA was/is effectively attempting to do an 'end run' around the court via PR while this case is pending ...

Er, you just described a conspiracy - the FDA and MSM, at the least, conspired to prejudice both the case and the thinking of other bodies and general public.

Anyway, important point.

 

[CJsKee]

This phrase all but jumped off the page at me...from SE's Status Report:

"The FDA's September 17, 2009 email, like its claims of authority in this action, ignores the law in this Circuit that "although nicotine may stimulate the senses, it does not affect either the structure or any function of the body." E.R. Squibb and Sons, Inc. v. Bowen, 870 F.2d 678, 683 (D.C. Cir. 1989) (citing Action on Smoking & Health v. Harris, 655 F.2d 236, 240 (D.C. Cir. 1980) for the above-stated proposition))."

Doesn't this say that FDA does NOT have jurisdiction over e-cigs as nicotine is NOT a drug that affects the structure or function of the body? Therefore, e-cigs cannot be a drug/delivery combination.

Am I reading this totally wrong?

 

[deewal]

Big Jim--Shame on the Court then if that is the case as not acting on SE's motion is tantamount to a defacto-denial of their Motion for relief. Sun

I would'nt rule that out. I would'nt rule anything out now. The corruption and downright lies seem to be rife throughout every aspect of this case.

 

[MrKai]

Er, you just described a conspiracy - the FDA and MSM

...wouldn't be a party here. They are reporting the "findings" of an authoritative source.

This isn't the 1960's and 70s...news isn't really "investigative" nowadays...more so it is "news Entertainment".

-K

 

[BigJimW]

This phrase all but jumped off the page at me...from SE's Status Report:

"The FDA's September 17, 2009 email, like its claims of authority in this action, ignores the law in this Circuit that "although nicotine may stimulate the senses, it does not affect either the structure or any function of the body." E.R. Squibb and Sons, Inc. v. Bowen, 870 F.2d 678, 683 (D.C. Cir. 1989) (citing Action on Smoking & Health v. Harris, 655 F.2d 236, 240 (D.C. Cir. 1980) for the above-stated proposition))."

Doesn't this say that FDA does NOT have jurisdiction over e-cigs as nicotine is NOT a drug that affects the structure or function of the body? Therefore, e-cigs cannot be a drug/delivery combination.

Am I reading this totally wrong?

870 F2d 678 Er Squibb and Sons Inc v. R Bowen Md | Open Jurist

It's a long read, but this is the case being cited in the above.

 

[Thulium]

Thulium --do not forget that NJOY is an intervening Plaintiff also. So both NJOY and SE would have to fold for this action to be dismissed----that is really not in the cards. We have come to far.


Sun

Still, you and others have pointed out that some of SE's poorly planned or executed decisions have created some of the problems we're facing now. Would we actually be better off if SE folded and took away the FDA's excuse to ban e-cigarettes or would it just mean that much less support for our cause?