Smoking Everywhere V. FDA Daily Docket Sheet Update--APPEAL's COURT ISSUES STAY
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Rather than sending money to one person in an attempt to fund the necessary legal actions to implede into this case, is this perhaps something that CASAA could help organize, or at least serve as a trusted place to gather the money?
I would be curious as to the barrier to entry to be considered a "supplier." I mean, how do you define it? Is a supplier anyone with an interest in selling electronic cigarettes and supplies, or is a supplier someone who's actually got a full time business doing it?
I have to respectfully disagree with Sun's opinion on the possible scope of a final ruling. The Brown and Williamson case was noted all over the preliminary judgement in the SE case. If Sun's logic were to hold true, then you could argue that Brown doesn't apply here because the ruling was specific to one company. Thankfully, the legal system doesn't work that way. In question are practices and devices used by an entire industry. Not the specific interests of two companies. What happens in the SE case will set precedent for the rest of the industry, regardless of outcome.
I suppose you're welcome to petition the court to add yourself to the case, but it won't affect the outcome, and is not likely to provide you or anyone else with "special" rights and privileges under the law.
The question is not whether anyone's allowed to "corner the market" or have a monopoly. No credible lawyer will EVER tell you that. What is at issue is the correct interpretation of a new law, and whether we use the new tobacco law to regulate electronic cigarettes; or whether we use the cosmetics act to regulate it.
In my opinion, there's no possible way there could be an outcome of this case that is limited to just the parties involved... unless they're the only ones selling electronic cigarettes; which, they're not.
Sun said that to join the case you would have to actually be affected by what FDA is doing. In other words, if you have shipments being held up by FDA, and this is presenting a financial hardship for you, then you have standing. If you just walk up and say, "Hey, I'm a supplier," you don't. But why would you want to spend money on legal representation unless you have a substantial financial stake in things?
Even if the final outcome applies to the entire industry, it could take years before the case is final. The point to joining the case now would be to try to gain protection under the preliminary injunction so that FDA will release your shipments and stop intercepting them.
Question to Sun or Legal One: if vendors start coming out of the woodwork asking to join the case, might Judge Leon decide to amend his ruling to apply to the entire industry?
It is the federal court injuction, which is only a provisional remedy whether it be preliminary or otherwise, that affects only the parties to the case, as prescribed by statute (FRCP Rule 65):
"(d) Contents and Scope of Every Injunction and Restraining Order.
(2) Persons Bound.
The order binds only the following who receive actual notice of it by personal service or otherwise:
(A) the parties;
(B) the parties' officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)."
Federal Rules of Civil Procedure - Rule 65
Once the case proceeds to a final judgment, then any ruling at the district court level, while not necessarily directly binding other parties, certainly becomes precedential authority, such that the FDA would not be as likely to ignore it. The higher a case goes up in the system, to a federal Court of Appeals and then ultimately to the US Supreme Court, the wider its application to others similarly situated becomes.
"(d) Contents and Scope of Every Injunction and Restraining Order.
(2) Persons Bound.
The order binds only the following who receive actual notice of it by personal service or otherwise:
(A) the parties;
(B) the parties' officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)."
Federal Rules of Civil Procedure - Rule 65
Once the case proceeds to a final judgment, then any ruling at the district court level, while not necessarily directly binding other parties, certainly becomes precedential authority, such that the FDA would not be as likely to ignore it. The higher a case goes up in the system, to a federal Court of Appeals and then ultimately to the US Supreme Court, the wider its application to others similarly situated becomes.
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If I was unclear, I apologize. I was talking about a final ruling, not the preliminary one.
Vocalek--Judge Leon will not do it for the simple reason that the parties in the suit are the ones who advanced it and would not assent to it. Judge Leon can not on his on volition, certify a class, when he has not been asked to do that. So long as they can meet the standard, there is nothing inhibiting them from joining the "party" so to speak. That is the way njoy and SE will see it all the way, as for them, "The Less, The Merrier".
Sun
It is understood. However, you implied that while other suppliers might try to enter the case, it wouldn't make much difference. Which still holds true with regards to the final ruling. Nevertheless, final ruling can be months if not years from now, and during that time there's no way for other suppliers to stay in business without getting FDA to release their shipments.
I can do that, sure. But it might get rather technical chemically, and this is a long report that I would like to read over a couple of times. I have some preliminary questions though, that will help me in understanding what you are reporting chemically.
What is the liquid in the cart? A tobacco juice? Unflavored? Some other flavor? And do you know the PG/VG content and nic level?
I'm not familiar with the nature of this ecig in general, but it looks to be based on your website a 3-piece, perhaps with a 306 style atty and cart?
What is the filler material in the cart, and would you describe the cart body itself as very hard, like a 510, or a bit softer? I ask because I think I see some plasticizer compounds being detected, besides the silicone cart compounds you have identified (I think your assignment on those is correct).
And finally, did you fill the cart yourself with liquid or were they filled in China and shipped? If you filled it, was it done right before the test, or had it been sitting in the cart for a while, and if so, how long? If you detail this in the report I didn't see it, so please point me to it.
And to Sun, the great moderator, would my technical description, which may be rather long, even for verbose me, be appropriate in this thread, or should I start one elsewhere, and where would you suggest? This will open several cans of worms, as you might imagine. There is a lot of new information here, and discussion with other chemists here will no doubt follow and be equally as detailed and long. I expect a lot of nerded out fun with folks like DVap, Kin, and several others.
And I hope the other chemists are reading this detailed report too, particularly those that have hands-on experience with mass spectra, as I have some particular questions about a couple of the spectra that only someone who actually does these could answer.
Kurt I am going to get you this information. Give me a couple days I am SUPER busy this week and would like to get ya everything in one shot......
Sebastian--looks like Kurt will give us a masterpiece. And Kurt by all means post it right in this thread.
Appreciated good People!!
Sun
There is a new thread for US Suppliers Call to Action: http://www.e-cigarette-forum.com/fo...pliers-call-action-join-fight.html#post968257
Sebastian: No problem, take your time. I'm rather busy too. PM me when you want to get to it. I think this should be discussed outside of this thread anyway.
Cheers,
Kurt
Then why not pose other lawsuits? If there's enough of a backing or fundraising drive to get into an existing case, then why are the resources beyond reach for a new suit?
It's already been stated (credibly, I think) that the FDA does not want additional lawsuits. If you want something binding, why not a class action? Trying to get into the scope of a summary or preliminary judgement retroactively (even though it probably can be done) just seems unethical.
Mosh--there is absolutly nothing unethical at all about invoking your right to file an action against the FDA by impleding into the instant case. If you are a Supplier and your shipments have been seized, then you have every right to seek judical relief in this case.
Sun
Thanks for the supporting thoughts, Sun! Not sure it will be a masterpiece, but I should be able to put forward some informative analysis, as long as other chemists here can give their inputs...I firmly believe in the peer-reviewed model of chemistry.
Not to argue with a moderator, but I do think it will be rather involved and bring up technical discussions that are not related to this already very long thread, and while others would likely be interested, I'm not sure they would think to look for it here. But we have some time before Sebastian and I get to it, so it isn't an immediate issue, and we can certainly get it started here and then see what's up.
I should forewarn, however, that I will be completely unbiased, especially since I am not affiliated with Sebastian's business, nor do I use the type of PVs he sells, possibly including cart materials and juices. It is wholly possible that my analysis introduces some genuine concerns and possible red flags, and I think most people here know how conservative I am with ejuices and their components in general. I make my own DIY VG, use no alcohol, and have an aversion to some commonly used flavors, based on my reactions and understanding of their chemistry. So this may not exactly be a glowing report. I cannot say yet, however, without further info from Sebastian, as I prefer to get all available info before I make general statements of any kind in any science I am involved with. But I wanted to be up front that I fully intend to be my usual honest analytical objective self, which may well open a can of worms he doesn't want. Just sayin' this is a possibility, not necessarily something I expect by any means, and I until I have more info from him, I truly have no opinion one way or another, nor will I be spending time trying to make one. This may take some time, as we are both very busy with our own problems.
Today there were no filings on the Docket Sheet but the FDA will be filing their Notice of Appeal soon enough.
On another note I would like to take the time to report that, although these Suppliers wish to remain silent, they have asked be to tell you that 6 of them had seized shipments over the course of the last week.
This is not a good sign as the FDA is acting almost like an immature child. I hope that this stance does not hold for long otherwise many of use will be using SE and NJOY if product does not get though to Suppliers. Absent buying direct from China, supplies may become limited if the FDA keeps this garbage up.
Sun
On another note I would like to take the time to report that, although these Suppliers wish to remain silent, they have asked be to tell you that 6 of them had seized shipments over the course of the last week.
This is not a good sign as the FDA is acting almost like an immature child. I hope that this stance does not hold for long otherwise many of use will be using SE and NJOY if product does not get though to Suppliers. Absent buying direct from China, supplies may become limited if the FDA keeps this garbage up.
Sun
We have a tendency to look at this as "us against the world", but IMO, I think it's just us against a few anti-smoker/vaper fanatics and their allies.
I read on one of the threads, maybe this one, that the FDA was taking a hard line to keep the voters happy, but I don't believe that to the majority of voters, tobacco use is a major concern, if indeed a concern at all, as to how they vote. Reading many of the comments on the Internet, may lead us to believe that the majority hate us, but in reality, the comments are just from the fringe elements. The majority are concerned about jobs, inflation, taxes, terrorism, etc.
I can't speak for everyone, everywhere, but in my neck of the woods, non-smokers have never given me a second look when I smoked in public and the same can be said of my vaping. I have only run into a couple of people, over the years, who have given me dirty looks, but that has been it. As long as I don't blow smoke in their faces, they don't care if I smoke/vape or not.
So why are some politicians and the FDA taking a hard line stance against e-cigs? I don't believe it has anything to do with pleasing the majority or getting votes.
Just my 2 cents worth.
I read on one of the threads, maybe this one, that the FDA was taking a hard line to keep the voters happy, but I don't believe that to the majority of voters, tobacco use is a major concern, if indeed a concern at all, as to how they vote. Reading many of the comments on the Internet, may lead us to believe that the majority hate us, but in reality, the comments are just from the fringe elements. The majority are concerned about jobs, inflation, taxes, terrorism, etc.
I can't speak for everyone, everywhere, but in my neck of the woods, non-smokers have never given me a second look when I smoked in public and the same can be said of my vaping. I have only run into a couple of people, over the years, who have given me dirty looks, but that has been it. As long as I don't blow smoke in their faces, they don't care if I smoke/vape or not.
So why are some politicians and the FDA taking a hard line stance against e-cigs? I don't believe it has anything to do with pleasing the majority or getting votes.
Just my 2 cents worth.
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