FDA States and the FDA

[zero7starz]

I've been doing tons of research on the whole FDA regulations and how that's going to affect me and my local vaping friends. I understand kind of the gambit that were looking at.

There is still hope and we are not done yet. Beyond the support of organizations like CASAA, others have been formed, China is starting to get involved, and several lawsuits have been filed. (Would love to see more lawsuits filed tbh!)

Here is where I get really confused. I live in Kansas. Kansas does not define vaping or vaping products as tobacco products. So effectively the FDA can overrule how my state feels and force members of the state to meet their compliance? Could the states not make their own rules for vaping akin to how some states made their own rules over other uh controversial substance? I don't understand this - with states rights it seems like they would be able to supersede that.

Beyond that I would like to add that our Kansas state representative, Kevin Yoder is a proud sponsor of Bill HR 2058, the bill that would change the grandfather date from the FDA.


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[Bahamaman]

The following is NOT offered as an endorsement of the FDA, or its Deeming Regs. Quite the opposite, actually. But, with that disclaimer aside, here goes.

Under the U.S. Constitution, the Federal Government (Congress specifically) has the power to regulate "commerce among the several states" (Article I, Section 8), commonly referred to as the right to regulate interstate commerce. Pursuant to that regulatory authority, Congress established the FDA to regulate food and drugs. Assuming that the sale of food and drugs (and vaping products) is either actually "in" interstate commerce, or that they have an "effect on interstate commerce," then Congress, and hence the FDA, has authority. It would be tough to argue that the manufacture and sale of vaping products don't at least have a substantial effect on interstate commerce.

Given that fact, and given the fact that the States under the X Amendment only have such power that is NOT allocated to the federal government, then no, Kansas has no right to provide vaping rules that are at odds with the FDA.

Wish it weren't true, and I am no fan of the FDA, but there is simply no reasonable argument that the law of a particular state takes precedence over federal law.

Hopefully, there are sufficient, other legal issues surrounding the Deeming Regs that will motivate a court to overturn them. But "states rights," unfortunately, isn't one of them.

 

[Ed_C]

It's my understanding that with the other controversial substance, the federal government has simply decided to not prosecute in these states under federal law. I may be wrong, but I think that is it.

 

[zero7starz]

The following is NOT offered as an endorsement of the FDA, or its Deeming Regs. Quite the opposite, actually. But, with that disclaimer aside, here goes.

Under the U.S. Constitution, the Federal Government (Congress specifically) has the power to regulate "commerce among the several states" (Article I, Section 8), commonly referred to as the right to regulate interstate commerce. Pursuant to that regulatory authority, Congress established the FDA to regulate food and drugs. Assuming that the sale of food and drugs (and vaping products) is either actually "in" interstate commerce, or that they have an "effect on interstate commerce," then Congress, and hence the FDA, has authority. It would be tough to argue that the manufacture and sale of vaping products don't at least have a substantial effect on interstate commerce.

Given that fact, and given the fact that the States under the X Amendment only have such power that is NOT allocated to the federal government, then no, Kansas has no right to provide vaping rules that are at odds with the FDA.

Wish it weren't true, and I am no fan of the FDA, but there is simply no reasonable argument that the law of a particular state takes precedence over federal law.

Hopefully, there are sufficient, other legal issues surrounding the Deeming Regs that will motivate a court to overturn them. But "states rights," unfortunately, isn't one of them.

Thank you that was the logical explanation I was looking for. [emoji4]


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[Ed_C]

So how would the right to regulate interstate commerce come in to play if a local B&M was mixing juice for their local customer base?

 

[Kent C]

I don't know if this type of law is similar to what the FDA is doing but when the Feds passed a law that set the Maximum Speed Limit, there was opposition and outright defiance of the law:

National Maximum Speed Law - Wikipedia, the free encyclopedia

On June 1, 1986, Nevada challenged the NMSL by posting a 70 mph (115 km/h) limit on 3 miles (5 km) of Interstate 80. The Nevada statute authorizing this speed limit included language that invalidated itself if the federal government suspended transportation funding. Indeed, the Federal Highway Administration immediately withheld highway funding, which automatically invalidated the statute by its own terms.

I recall other states who did the same but it's not mentioned in wiki - seems like Arizona and Wyoming also set their own speed limits and forewent federal funding. It wasn't long after that more states followed and the Feds repealed the act.

I'd also point out that libertarian groups supported the states then, as they have wrt ecigs:

A Cato Institute report showed that the safety record worsened in the first few months of the new speed limits, suggesting that the fatality drop found by the NRC was a statistical anomaly that regressed to the mean by 1978

 

[Bahamaman]

So how would the right to regulate interstate commerce come in to play if a local B&M was mixing juice for their local customer base?

Google Wickard v. Filburn - a farmer was growing crops to feed his farm animals in the 1940s. There were no sales of the crops in interstate commerce, and the farmer argued that a federal law which sought to regulate his "local" activity could not be applicable to him. The Supreme Court disagreed, noting that if all farmers were to do the same, an admittedly local activity could still have a sufficient effect on interstate commerce so as to be covered by the federal law. The argument you make sounds entirely logical, and is, but it isn't one that is likely to prevail given the cases that have gone before. I guess we can always hope the Supreme Court might narrow the meaning of interstate commerce, but I wouldn't get my hopes up too high.

 

[Bahamaman]

I don't know if this type of law is similar to what the FDA is doing but when the Feds passed a law that set the Maximum Speed Limit, there was opposition and outright defiance of the law:

National Maximum Speed Law - Wikipedia, the free encyclopedia

On June 1, 1986, Nevada challenged the NMSL by posting a 70 mph (115 km/h) limit on 3 miles (5 km) of Interstate 80. The Nevada statute authorizing this speed limit included language that invalidated itself if the federal government suspended transportation funding. Indeed, the Federal Highway Administration immediately withheld highway funding, which automatically invalidated the statute by its own terms.

I recall other states who did the same but it's not mentioned in wiki - seems like Arizona and Wyoming also set their own speed limits and forewent federal funding. It wasn't long after that more states followed and the Feds repealed the act.

I'd also point out that libertarian groups supported the states then, as they have wrt ecigs:

A Cato Institute report showed that the safety record worsened in the first few months of the new speed limits, suggesting that the fatality drop found by the NRC was a statistical anomaly that regressed to the mean by 1978

It's not really the same. The Federal Government has frequently conditioned the award of federal funds upon compliance with some national mandate (like speed limits). Even if the Federal Government could not regulate the activity (speed limits) under the Commerce Clause, it may nevertheless condition federal funding on a State's compliance with that mandate.

The FDA is not conditioning some funding grant on a state's willingness to comply with vaping regulations. It is simply regulating vaping under its (alleged) authority under the Commerce Clause.

 

[Ed_C]

Thanks, I figured there must be some convoluted case law that would explain this, I just didn't know what it was.

 

[Bahamaman]

Ed_C and others - thanks for your kindness in not shooting the messenger (me!). I was just trying to give the most accurate and dispassionate account of the state of the law as I know it to be, irrespective of whether I agree with it.

 

[Kent C]

It's not really the same. The Federal Government has frequently conditioned the award of federal funds upon compliance with some national mandate (like speed limits). Even if the Federal Government could not regulate the activity (speed limits) under the Commerce Clause, it may nevertheless condition federal funding on a State's compliance with that mandate.

The FDA is not conditioning some funding grant on a state's willingness to comply with vaping regulations. It is simply regulating vaping under its (alleged) authority under the Commerce Clause.

Actually in one lawsuit Larry Faircloth's, they are using State's Rights as part of the suit. Whether or not there are funds that could be withheld, I don't know. Sometimes that's the coercion used by the Feds. And not just for speed limits. There are also cases where the Feds don't pursue - stuff we can't talk about but also 'sanctuary cities', NC's 'bathroom laws' (where the Feds are threatening to withhold funds - something not in the law but would be a new law specifically for withholding of funds for states who don't comply - something that as far as I know isn't part of the deeming but could be legislated if State's refused to follow the deeming.

Q. What specifically are your challenging in your suit as argument?

A. We know that the FDA has definitely, without doubt, over reached its jurisdiction on the Constitution. We were able to directly cite violation in not only the 1st Amendment Rights of the Constitution, but more importantly, the 10th Amendment. Let’s keep in mind, the 10th Amendment is the article that protects State’s Rights. Each state has an Attorney General, and to this point their hands have been tied with filing suit against the FDA as well. This can open the door for requests for them to follow suit for State’s Rights.


Read more http://guidetovaping.com/2016/06/17/deeming-regulations-for-vaping-policy-maker-files-suit-against-fda/

Constitution Check: Do states have the power to block new federal gun controls?

 

[Bahamaman]

I would love to be able to assert that the FDA "definitely, without doubt, over reached its jurisdiction." I'm sick and tired of the countless dollars I've spent hoarding products to deal with this insanity. But, trust me, this guy is clueless if he thinks it's somehow a slam dunk winning argument. I hope he's right, but right now it's all bravado and posturing.