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

[Vocalek]

I see it as you wanting to sue the cheerleaders and I cant see that happening.
It would be nice though...heck, it may be possible for all I know abt the law...which is very little.
And less as this case goes on!

I disagree. Mr.B's actions went far beyond cheerleeding. He wrote threatening letters to financial organizations that process online sales. He told those organizations that the products were illegal, knowing full well that the issue was going to be decided by a court of law. He takes credit for the fact that some of those financial organizations began refusing to process payments for the products. This resulted in financial harm to some businesses.

 

[sherid]

I disagree. Mr.B's actions went far beyond cheerleeding. He wrote threatening letters to financial organizations that process online sales. He told those organizations that the products were illegal, knowing full well that the issue was going to be decided by a court of law. He takes credit for the fact that some of those financial organizations began refusing to process payments for the products. This resulted in financial harm to some businesses.

Banzass is a zealot. Zealots always go too far and eventually get caught in their fatal errors. Some of us dream of the day that happens to these zealots. Perhaps this is the start of that process.

 

[JerryRM]

It would appear that Banzall has gone too far, especially with some of his recent statements about companies not hiring smokers and imposing extra taxes on smokers. It's makes you wonder what is next, concentration camps?

 

[Vaporer]

I'll leave this discussion to the more educated than myself. If charges were to be made I still do not see that it can acomplished in the case presently before the court.
I feel it would be a seperate case and could or should be filed regardless of the outcome to set a precedent of such deceptive actions.

 

[JerryRM]

Disclaimer - I do not encourage the use of illegal drugs, this post is merely to make a comparison.

Ok, now that that's out of the way, in the 1930's the government decided to ban .......... A campaign of lies and propaganda was started, condemning ......... as being a gateway to ...... use, causing people to act irrationally, even to the point of committing murder (...... Madness), etc. None of which is true, but it worked, the people bought it. I see the same thing happening with e-cigarettes, the lies and propaganda are flowing like water.

The word for "weed", was edited out by the Forum.

The History Channel occasionally airs a program called "Illegal Drugs and How They Got That Way". It's worth watching.

 

[Sun Vaporer]

Although it is very easy to get caught up in striking out at Banzhaf due to the frustration he causes, IMO it really is very unproductive to spend time and effort complaining about him. To the contrary, learning from his tactics and then employing some of them is the much better route to go. This is big business in a highly charged topic. The majority of people want smoking errraticated. They do not care to stop and think nor do they really care unless they are educated. Of course this guy is over the top, but that is what it takes to get the job done for him as well as us. This battle is never going to be won by asking "pretty please" or looking for polite debates. The stakes are way to high and egos are way to big.

So I would suggest taking a page out of Banzhaf's "playbook" and using it to our benefit and goals instead of getting all worked up and spending time thinking about how to stop him. Bottom line is you can not stop him, but you can learn from him and make his tactics work "against" him instead of "for" him.

Just look at his Bio:

He's also been called — often by his enemies — a "Legal Terrorist," the "Osama bin Laden of Torts," a "Legal Bomb-Thrower," and a "Legal Flamethrower," and he has frequently been attacked on web sites (which are often inaccurate) [see, e.g., BanzhafWatch.com] by those who opposed his activities — clear indications, he says, that his many targets fear him and his legal actions.

As a young lawyer, John Banzhaf brought a legal action which required broadcast stations to provide hundreds of millions of dollars of free broadcast time for anti-smoking messages — an action which resulted in the first ever decline in cigarette consumption, something even the 1964 Surgeon General's Report was not able to achieve. Subsequently, after founding Action on Smoking and Health (ASH) to serve as the legal-action arm of the antismoking community [ About ASH ], he helped drive cigarette commercials off the air, and started the nonsmokers' rights movement by first getting no-smoking sections — and then smoking bans — on airplanes and in many other public places.

Banzhaf and ASH have played a major role in the war on smoking and for nonsmokers' rights, including promoting and helping to mastermind law suits against the tobacco industry, in defending the legal rights of nonsmokers in hundreds of legislative, administrative, and judicial proceedings, and in helping to pass, implement, and enforce the first world antismoking and nonsmokers' rights treaty [nosmoking.ws]. More recently he helped ban cigarette advertising in several European countries, and to ban smoking outdoors, in homes and cars where foster children are present, to protect children involved in custody disputes, etc. [New Frontiers For Nonsmokers]. His contributions to the war on smoking have been very widely recognized [ What Others Have Said About ASH]

At the George Washington University Law School, Prof. John Banzhaf teaches Torts, Administrative Law, Disabled People and the Law, and Law and the Deaf. He also teaches a unique world-famous course — "Legal Activism" [Law 637], which has been dubbed "suing for credit"[GW's Legal Powerhouse] and "Sue the .......s" — where his law students, which the press dubbed "Banzhaf's Bandits" [Time Magazine], learn to become public interest lawyers by bringing their own legal actions [Spotlight: Professor brings the classroom to the courtroom].

Read up on him Prof. John F. Banzhaf III of George Washington University Law School and Action on Smoking and Health (ASH) . Obviously he is effective. The more we learn about how he gets his messege accross---the farther we will go.


Sun

 

[Vaporer]

Jerry, I remember that black & white "educational" flick all to well.
I always enjoyed the wide eyed people with the darkened eyes underneath commiting acts they normally would not do.
Please do not tell me this is where I'll be and look like if I continue to vape!

 

[Vocalek]

Sun: I think you're right. When you're among people who play dirty, you can't be afraid to throw a little mud around. I'm thinking of a few lines from "We Will Rock You".

You got mud on your face, you big disgrace.
Slander my name all over the place.

 

[JerryRM]

Jerry, I remember that black & white "educational" flick all to well.
I always enjoyed the wide eyed people with the darkened eyes underneath commiting acts they normally would not do.
Please do not tell me this is where I'll be and look like if I continue to vape!

Who knows, Vaporer, maybe "E-cig Madness" is next !!!

 

[woolfe99]

No need to apologize Jan---we are all a little frustrated at how this played out. This argument was never advanced in the record below so it can not be raised on appeal now.
　
　
There were many things that might have been done differently in this case. That being said, I do believe that we are dealing with very competent Counsel with SE and NJOY as well as the FDA. Counsel for each of the entities is paid to advocate zealously for their clients and to win.
　
We just have to hope that we land on the right side of the fence.

Sun

Perhaps I'm missing something here, but on appeal the parties are only bound by the evidence put into the record in the lower court. Legal arguments not made in the trial court can often be made on appeal. And you can argue in the alternative. For example, SE could argue that e-cigs don't qualify as either drugs/devices or as tobacco, and hence the FDA has no authority to regulate them at all, or in the alternative, if they do have authority to regulate them, it would be as tobacco. They could also argue that the hardware can't be regulated because it can be used to deliver 0 nic liquid, and that 0 nic liquid sales cannot be regulated. All those arguments can be made at once, and ordinarily you can get away with advancing a different legal argument on appeal, so long as the evidence presented in the lower court - which cannot be augmented on appeal - substantiates your argument.

Then again, you seem to be following this case very closely, so you may know some things I don't.

- wolf

 

[Thulium]

Perhaps I'm missing something here, but on appeal the parties are only bound by the evidence put into the record in the lower court. Legal arguments not made in the trial court can often be made on appeal. And you can argue in the alternative. For example, SE could argue that e-cigs don't qualify as either drugs/devices or as tobacco, and hence the FDA has no authority to regulate them at all, or in the alternative, if they do have authority to regulate them, it would be as tobacco. They could also argue that the hardware can't be regulated because it can be used to deliver 0 nic liquid, and that 0 nic liquid sales cannot be regulated. All those arguments can be made at once, and ordinarily you can get away with advancing a different legal argument on appeal, so long as the evidence presented in the lower court - which cannot be augmented on appeal - substantiates your argument.

Then again, you seem to be following this case very closely, so you may know some things I don't.

- wolf

Nicely put! This is exactly the argument I believe should be sent in an Amicus brief: Even if the FDA can show that e-cigarettes can't be regulated as a tobacco product, Judge Leon's opinion that they cannot be regulated as a drug without evidence of their therapeutic value should stand which leaves the FDA unable to regulate e-cigs at all. This is consistent with the plaintiff's stance from the outset in the extant case.

 

[Sun Vaporer]

Perhaps I'm missing something here, but on appeal the parties are only bound by the evidence put into the record in the lower court. Legal arguments not made in the trial court can often be made on appeal. And you can argue in the alternative. For example, SE could argue that e-cigs don't qualify as either drugs/devices or as tobacco, and hence the FDA has no authority to regulate them at all, or in the alternative, if they do have authority to regulate them, it would be as tobacco. They could also argue that the hardware can't be regulated because it can be used to deliver 0 nic liquid, and that 0 nic liquid sales cannot be regulated. All those arguments can be made at once, and ordinarily you can get away with advancing a different legal argument on appeal, so long as the evidence presented in the lower court - which cannot be augmented on appeal - substantiates your argument.

Then again, you seem to be following this case very closely, so you may know some things I don't.

- wolf

Wolf--the bold and underlined that you stated is pretty much the standard without getting into all the nitty gritty. Anythink outside that would be subject to a Motion to Strike.

Sun

 

[woolfe99]

Wolf--the bold and underlined that you stated is pretty much the standard without getting into all the nitty gritty. Anythink outside that would be subject to a Motion to Strike.

Sun

I just wanted to clarify that SE and NJOY are not bound by whatever position they took as a matter of legal arguments in the lower court. They can argue new legal theories on appeal. For example, they might have argued only that e-cigs were a tobacco product in the lower court, but they could argue on appeal that they are neither a tobacco product nor a drug/device, even though it appears to contradict what they argued before, and even though the argument was not made before. The parties are bound by the facts put into evidence in the lower court, not by any legal arguments they made or didn't make. So in general, legal arguments can change on appeal, and often do.

I'm not saying they're going to change strategies on appeal, or that they should, but there is certainly room to do so.

- wolf

 

[Sun Vaporer]

I just wanted to clarify that SE and NJOY are not bound by whatever position they took as a matter of legal arguments in the lower court. They can argue new legal theories on appeal. For example, they might have argued only that e-cigs were a tobacco product in the lower court, but they could argue on appeal that they are neither a tobacco product nor a drug/device, even though it appears to contradict what they argued before, and even though the argument was not made before. The parties are bound by the facts put into evidence in the lower court, not by any legal arguments they made or didn't make. So in general, legal arguments can change on appeal, and often do.

I'm not saying they're going to change strategies on appeal, or that they should, but there is certainly room to do so.

- wolf

In an appeal on the record from a decision in a judicial proceeding, both appellant and respondent are bound to base their arguments wholly on the proceedings and body of evidence as they were presented in the lower tribunal. Each seeks to prove to the higher court that the result they desired was the just result. Precedent and case law figure prominently in the arguments.

In order for the appeal to succeed, the appellant must prove that the lower court committed reversible error, that is, an impermissible action by the court acted to cause a result that was unjust, and which would not have resulted had the court acted properly.

Some examples of reversible error would be erroneously instructing the jury on the law applicable to the case, permitting seriously improper argument by an attorney, admitting or excluding evidence improperly, acting outside the court's jurisdiction, injecting bias into the proceeding or appearing to do so, juror misconduct, etc. The failure to formally object at the time, to what one views as improper action in the lower court, may result in the affirmance of the lower court's judgment on the grounds that one did not "preserve the issue for appeal" by objecting.


In cases where a judge rather than a jury decided issues of fact, an appellate court will apply an abuse of discretion standard of review. Under this standard, the appellate court gives deference to the lower court's view of the evidence, and reverses its decision only if it were a clear abuse of discretion. This is usually defined as a decision outside the bounds of reasonableness.

On the other hand, the appellate court normally gives less deference to a lower court's decision on issues of law, and may reverse if it finds that the lower court applied the wrong legal standard.


Sun

 

[bassnut]

Has anybody tried contacting National Public Radio about this? This seems like the type of current event story they'd be interested in.
I suppose there are a lot of different people who contribute regularly to NPR that could be contacted individually.

 

[Vocalek]

Has anybody tried contacting National Public Radio about this? This seems like the type of current event story they'd be interested in.
I suppose there are a lot of different people who contribute regularly to NPR that could be contacted individually.

Yes, this is something that I am working on.

 

[BigJimW]

Although it is very easy to get caught up in striking out at Banzhaf due to the frustration he causes, IMO it really is very unproductive to spend time and effort complaining about him. To the contrary, learning from his tactics and then employing some of them is the much better route to go. This is big business in a highly charged topic. The majority of people want smoking errraticated. They do not care to stop and think nor do they really care unless they are educated. Of course this guy is over the top, but that is what it takes to get the job done for him as well as us. This battle is never going to be won by asking "pretty please" or looking for polite debates. The stakes are way to high and egos are way to big.

So I would suggest taking a page out of Banzhaf's "playbook" and using it to our benefit and goals instead of getting all worked up and spending time thinking about how to stop him. Bottom line is you can not stop him, but you can learn from him and make his tactics work "against" him instead of "for" him.

Just look at his Bio:

He's also been called — often by his enemies — a "Legal Terrorist," the "Osama bin Laden of Torts," a "Legal Bomb-Thrower," and a "Legal Flamethrower," and he has frequently been attacked on web sites (which are often inaccurate) [see, e.g., BanzhafWatch.com] by those who opposed his activities — clear indications, he says, that his many targets fear him and his legal actions.

As a young lawyer, John Banzhaf brought a legal action which required broadcast stations to provide hundreds of millions of dollars of free broadcast time for anti-smoking messages — an action which resulted in the first ever decline in cigarette consumption, something even the 1964 Surgeon General's Report was not able to achieve. Subsequently, after founding Action on Smoking and Health (ASH) to serve as the legal-action arm of the antismoking community [ About ASH ], he helped drive cigarette commercials off the air, and started the nonsmokers' rights movement by first getting no-smoking sections — and then smoking bans — on airplanes and in many other public places.

Banzhaf and ASH have played a major role in the war on smoking and for nonsmokers' rights, including promoting and helping to mastermind law suits against the tobacco industry, in defending the legal rights of nonsmokers in hundreds of legislative, administrative, and judicial proceedings, and in helping to pass, implement, and enforce the first world antismoking and nonsmokers' rights treaty [nosmoking.ws]. More recently he helped ban cigarette advertising in several European countries, and to ban smoking outdoors, in homes and cars where foster children are present, to protect children involved in custody disputes, etc. [New Frontiers For Nonsmokers]. His contributions to the war on smoking have been very widely recognized [ What Others Have Said About ASH]

At the George Washington University Law School, Prof. John Banzhaf teaches Torts, Administrative Law, Disabled People and the Law, and Law and the Deaf. He also teaches a unique world-famous course — "Legal Activism" [Law 637], which has been dubbed "suing for credit"[GW's Legal Powerhouse] and "Sue the .......s" — where his law students, which the press dubbed "Banzhaf's Bandits" [Time Magazine], learn to become public interest lawyers by bringing their own legal actions [Spotlight: Professor brings the classroom to the courtroom].

Read up on him Prof. John F. Banzhaf III of George Washington University Law School and Action on Smoking and Health (ASH) . Obviously he is effective. The more we learn about how he gets his messege accross---the farther we will go.


Sun

http://www.banzhafwatch.org

You forgot I resurrected this site almost a year ago.

 

[Sun Vaporer]

http://www.banzhafwatch.org

You forgot I resurrected this site almost a year ago.

Big Jim--I did not forget my Friend. The problem is that the majority of Members are new and us old timers are few and far between these days.


Always appreciate your videos Jim and hope your Son is doing well.

Sun

 

[JustMeAgain]

Big Jim--I did not forget my Friend. The problem is that the majority of Members are new and us old timers are few and far between these days.


Always appreciate your videos Jim and hope your Son is doing well.

Sun

I'll bet there's still more of us 'oldies' out there than you realize...

Gee, I'm an oldie ~ hope I'm a goodie, too....

 

[Sun Vaporer]

I'll bet there's still more of us 'oldies' out there than you realize...

Gee, I'm an oldie ~ hope I'm a goodie, too....

Not from what I see Justme--and you are one of the Oldies. Do not know about a good one though

All kidding aside, many have gone by the wayside.


Sun