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Vape shops sue to block U.S. regulation covering e-cigarettes

Discussion in 'FDA Regulations' started by FlamingoTutu, Jan 30, 2018.

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  1. FlamingoTutu

    FlamingoTutu Vaping Master ECF Veteran

    Supporting member
    Aug 5, 2013
    In the Mountains
    Just dropping this in here since I didn't see it mentioned elsewhere, which doesn't mean it isn't... :( Merge or delete as necessary.

    The shops located in California, Michigan, Minnesota, North Dakota, and Texas argue that the so-called “Deeming Rule” that deems e-cigarettes to be tobacco products was not legally adopted because it was issued by a career FDA employee, rather than an officer appointed by the president.

    The lawsuits also contend that the rule violates the U.S. Constitution’s free speech protections by requiring vape retailers to obtain the FDA’s approval before advertising information about their products’ health and related effects.


    Vape shops sue to block U.S. regulation covering e-cigarettes
     
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  2. Letitia

    Letitia Nano Junkie

    Supporting member
    Apr 2, 2017
    West Frankfort, IL
    I have read that, but don't remember where. They cannot stand on the free speech due to tobacco classification. They have to change the classification, if that happens the free speech suit would be null.
     
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  3. zoiDman

    zoiDman My -0^10 = Nothing at All* ECF Veteran

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    Apr 16, 2010
    So-Cal
    That is an Interesting Twist to say the least.
     
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  4. Bill Godshall

    Bill Godshall Executive Director
    Smokefree Pennsylvania
    ECF Veteran

    Supporting member
    Apr 2, 2009
    If anyone finds a copy of the lawsuits that were filed (in three different federal court circuits), please post ASAP.

    "The vape shops, represented by the Pacific Legal Foundation conservative legal group, in lawsuits filed in federal courts in Texas, Minnesota and Washington, D.C., argued the 2016 rule was unconstitutional."

    Pacific Legal Foundation is legit, but I don't know about the merits of these lawsuits.
     
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  5. zoiDman

    zoiDman My -0^10 = Nothing at All* ECF Veteran

    Supporting member
    Apr 16, 2010
    So-Cal
    I believe this is it...

    Complaint filed in U.S. District Court for the Northern District of Texas
     
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  6. Opinionated

    Opinionated Vaping Master Verified Member ECF Veteran

    Supporting member
    Aug 19, 2015
    Texas filing: (PDF)
    Complaint filed in U.S. District Court for the Northern District of Texas

    District of Columbia filing: (PDF)
    Complaint filed in U.S. District Court for the District of Columbia

    Minnesota filing: (PDF)
    Complaint filed in U.S. District Court for the District of Minnesota
     
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  7. zoiDman

    zoiDman My -0^10 = Nothing at All* ECF Veteran

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    Apr 16, 2010
    So-Cal
    Looks like the 3 Lawsuit are Separate items (???). I guess that needs to be done because of the Location of the Relief seekers. And then the 3 would be Enjoined.

    They can be found Here in the R/H side of this page.

    Arbitrary federal vaping regulations threaten businesses, consumers—and constitutional rights

    ETA - Never mind. Opinionated beat me to it.
     
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  8. FlamingoTutu

    FlamingoTutu Vaping Master ECF Veteran

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    Aug 5, 2013
    In the Mountains
    @Letitia, think I've heard something like that in the past. :(

    @zoiDman, I hope it gets far enough along to be an interesting twist.

    @Opinionated, nice find!
     
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  9. retired1

    retired1 Administrator Admin Verified Member ECF Veteran

    Supporting member
    Apr 5, 2013
    Texas
    Don't see their complaint of who signed off on the deeming regulations holding any water. During the time it was signed off on, there was no FDA Chairman. Perfectly acceptable for the "Acting" Chairman to fill the role as needed.
     
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  10. Bill Godshall

    Bill Godshall Executive Director
    Smokefree Pennsylvania
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    Apr 2, 2009
    The reason that lawsuits were filed in three different federal court districts is because different judges and appeals courts in each district could issue vastly different verdicts, and because different verdicts in different districts could send the cases to the US Supreme Court for adjudication.
     
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  11. FlamingoTutu

    FlamingoTutu Vaping Master ECF Veteran

    Supporting member
    Aug 5, 2013
    In the Mountains
    Not encouraging.

    Do you think that would be a good thing in the long run?
     
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  12. Bill Godshall

    Bill Godshall Executive Director
    Smokefree Pennsylvania
    ECF Veteran

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    Apr 2, 2009
    The lawyers at Pacific Legal Foundation filed the litigation against FDA because they believe it is winnable.

    If Retired1 is an attorney, please provide some rationale for your negative comment.
     
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  13. Ralph_K

    Ralph_K Senior Member

    Jan 1, 2018
    Florida, US
    Any FDA regulation that violates 1st amendment is an actual crime. They can be prosecuted for "Conspiracy Against Rights" a felony. Only a constitutional amendment can override a constitutional amendment and an act of congress cannot and even if it could congress has absolutely no power to make any law in regards to freedom of speech.
     
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  14. zoiDman

    zoiDman My -0^10 = Nothing at All* ECF Veteran

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    Apr 16, 2010
    So-Cal
    Isn't there a Line Drawn between what is considered "Noncommercial Speech" and "Commercial Speech" ?

    And "Commercial Speech" isn't afforded the same protections under the 1st Amendment as what would be afforded to an Individual.

    Right?
     
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  15. Ralph_K

    Ralph_K Senior Member

    Jan 1, 2018
    Florida, US
    Nope. Under Bush he gave corporation rights same as people. I think it's crap because corporations have more rights than actual people now
     
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  16. WorksForMe

    WorksForMe Ultra Member Verified Member ECF Veteran

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    Sep 21, 2012
    N.N., Virginia
    That sounds right to me. For years, the FDA has been telling big companies what they can and can't say in advertisements and on packaging. If that was against the law, you would think somebody would have called them on it by now.

    As for their other argument, that could be a technicality that nullifies this whole thing, but I doubt it.
     
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  17. zoiDman

    zoiDman My -0^10 = Nothing at All* ECF Veteran

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    Apr 16, 2010
    So-Cal
    Didn't realize that a POTUS had the Authority to do that?

    Seems like something that a Supreme Court would decide.
     
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  18. WorksForMe

    WorksForMe Ultra Member Verified Member ECF Veteran

    Supporting member
    Sep 21, 2012
    N.N., Virginia
    Commercial speech - Wikipedia

    "In the 1980 case Central Hudson Gas & Electric Corp. v. Public Service Commission, the U.S. Supreme Court developed a four-part test to determine whether commercial speech regulation violates the First Amendment:
    1. Whether the commercial speech concerns a lawful activity and is not misleading
    2. Whether the government interest asserted to justify the regulation is "substantial"
    3. Whether the regulation "directly advances" that government interest
    4. Whether the regulation is no more extensive than necessary to serve that interest "
    I would think that the FDA could successfully argue that the Deeming rule passes this Central Hudson test.
     
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  19. Ralph_K

    Ralph_K Senior Member

    Jan 1, 2018
    Florida, US
    Supreme Court only determines if a law is constitutional. Now days presidents do what ever they want. Presidents aren't suppose to be making laws they aren't even in legislative branch of government. make no if, and, or but about it the corporations as people thing was just to legalize bribes by stating corporate money is free speech
     
  20. zoiDman

    zoiDman My -0^10 = Nothing at All* ECF Veteran

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    Apr 16, 2010
    So-Cal
    So what Exactly did Bush do?

    And how does it Apply to this e-Cigarette Lawsuit?
     
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