Virginia (mis)interpretation of statute regarding e-cigarettes

[yvilla]

I disagree completely. The two issues are in reality only one. The fight for the legal availability of ecigs depends on debunking the outright misrepresentations and junk science as to the supposed "harmfulness" of ecigs put out there by the FDA and groups such as ASH, TFK, ACS and ALS, etc. Give up on challenging their nonsensical opposition to ecig use in public places, and we might as well cede the availability issue as well.

The fact is that ecigs are the single greatest method of tobacco harm reduction to ever become available to date, and we must continue to present this reality and carry out the struggle for rational, science based discourse about this issue on all fronts.

 

[Oliver]

Exactly right yvilla, you said it perfectly.

 

[PhiHalcyon]

The legal availability of the ecig depends on one thing, and one thing only, and that is the FDA choosing to regulate the ecig and its tobacco extract solutions as tobacco products. The Court cannot force the FDA to do this, and it is extremely doubtful that Congress will be inclined to change the law that it just passed seven months ago (and that was eight years in the making) anytime soon. Consequently, we should be embracing and celebrating any and all attempts to characterize the ecig as a tobacco product - including the banning of its use where smoking is not permitted; while focusing all of our efforts on the single most important objective of pressuring the FDA to regulate the ecig as a tobacco product.

Acting like delusional ignorami who erroneously proclaim that vaporizing and inhaling tobacco extracts is neither smoking nor using tobacco - and is thus perfectly okay to do wherever we please - will ensure nothing but the maximum number of opponents who will be pressuring the FDA to do what both the law and regulatory precedence would make it so extremely easy for it to do - which is maintain that the ecig is an unapproved drug/device combination, and those who sell them, felons.

 

[Oliver]

Hang on a minute, I don't remember seeing any legislation to stop using other smokeless tobacco products in public. Please correct me if I'm wrong.

The point is that e-cigs are non-polluting, smokeless tobacco products. How can their use in public be legitimately prohibited?

 

[ChipCurtis]

Acting like delusional ignorami who erroneously proclaim that vaporizing and inhaling tobacco extracts is neither smoking nor using tobacco - and is thus perfectly okay to do wherever we please - will ensure nothing but the maximum number of opponents who will be pressuring the FDA to do what both the law and regulatory precedence would make it so extremely easy for it to do - which is maintain that the ecig is an unapproved drug/device combination, and those who sell them, felons.

Whatever happens, there will be no real way for the sale and distribution of the hardware to become an actual criminal activity -- even the atomizers. They can be sold at shops that also sell hookahs, bongs, glass pipes -- for legal tobacco vaporization use. The only issue will be the e-juice. That problem can be solved by using the nicotine extract from legal products like inhalers, snus, gums. Mix that with legal VG or PG and legal Lorann's flavorings in the right proportions, and you're good to go.

Battery re-chargers will always be legal. Long white barrel-shaped batteries can be sold as a tailpipe accessory to an electronic remote-control car. Atomizers can be sold as a replacement vaporizing component in a portable room-based humidifier.

In other words, there will always be ways to circumvent getting the combined components and liquids that you need to vape, all from various legal sources. It may only end up that the selling of kits for the express purpose of e-cigarette use will end up being banned.

 

[Darmeen]

FDA to do what both the law and regulatory precedence would make it so extremely easy for it to do - which is maintain that the ecig is an unapproved drug/device combination, and those who sell them, felons.

That is not for the FDA to decide, that is what Judge Leon's decision is about, and it has already been made, just not released. If the judge says that the e-cig is a drug device, then it is regulated as such, but if the judge says it is a tobacco product, it has to be regulated as a smokless tobacco product. We don't know what his decision is, but that is what the FDA will have to work with, or file an appeal, which would take more time, time in which we can continue to educate the public on the benefits of the e-cig.

A question for everyone, is it possible for Judge Leon to create a new classification for the e-cig to fall under? or does his ruling have to be one of the two listed?

Hell, even if he listed it as a SMOKELESS tobacco product, that would be HUGE!!!!! In my thinking, if a federal judge says that the vapor is not to be considered smoke, well then there is your answer to 'smoking' bans.

I know, I am being highly optimistic...but hell, someone around here has to be.

 

[JerryRM]

A question for everyone, is it possible for Judge Leon to create a new classification for the e-cig to fall under? or does his ruling have to be one of the two listed?

Darmeen, that possibility was discussed on the SE vs FDA thread, some time ago. Apparently he can, but it's not likely that he will.

 

[PhiHalcyon]

The point is that e-cigs are non-polluting, smokeless tobacco products.

Ecigs are not smokeless. Stonewalls, yes. Snus, sure. But not ecigs. As I already pointed out, the definition of smoke is not limited to "The vaporous system made up of small particles of carbonaceous matter in the air, resulting mainly from the burning of organic material, such as wood or coal." The definition of smoke also includes "A suspension of fine solid or liquid particles in a gaseous medium", and "A cloud of fine particles." Consequently, it is inaccurate to say that ecigs are smokeless.

Furthermore, since the definition of smoke (as a verb) includes "To draw in and exhale smoke from a cigarette, cigar, or pipe", (and the ecig, like an Iolite, is a tobacco vaporizing pipe - with the only real difference being in the form of the tobacco being vaporized), then using an ecig IS smoking ... because we are in fact drawing in and exhaling a suspension of fine liquid particles in a gaseous medium from a tobacco extract vaporizing pipe.

 

[Mac]

Ecigs are not smokeless. Stonewalls, yes. Snus, sure. But not ecigs. As I already pointed out, the definition of smoke is not limited to "The vaporous system made up of small particles of carbonaceous matter in the air, resulting mainly from the burning of organic material, such as wood or coal." The definition of smoke also includes "A suspension of fine solid or liquid particles in a gaseous medium", and "A cloud of fine particles." Consequently, it is inaccurate to say that ecigs are smokeless.

Furthermore, since the definition of smoke (as a verb) includes "To draw in and exhale smoke from a cigarette, cigar, or pipe", (and the ecig, like an Iolite, is a tobacco vaporizing pipe - with the only real difference being in the form of the tobacco being vaporized), then using an ecig IS smoking ... because we are in fact drawing in and exhaling a suspension of fine liquid particles in a gaseous medium from a tobacco extract vaporizing pipe.

I don't get it. How can you really believe that the vapor these things emit is harmful to others when all the evidence points toward the contrary? You seem like a bright guy. Are you being obtuse on purpose?

I mean seriously dude. Are you going to sit there and tell us that you really believe that there is no difference between the vapor my cig emits and the foul burning smoke that comes froma newport? Do you really believe that????

 

[Oliver]

He's not being obtuse, rather he's using a definition of "smoke" that he believes to be valid (and perhaps is valid), and applying it to e-cigarettes.

OK, supposing we choose to accept your definition of smoke, you still have to concede that smoking-prohibition laws do not and cannot prohibit the production of indoor smoke per se, rather they prohibit smoke that arises from a defined type of tobacco product. Now, if legislature wishes to include e-cigarettes in this definition, they are welcome to try - but I think that vapers should oppose this.

I do not accept that e-cigarettes are already included in the definition; cigarettes, cigars and pipes are all clearly products that must be lit. E-cigarettes are not lit.

I really don't understand why you'd be averse to this. I'm simply arguing that the law be written and applied in the spirit in which it was originally conceived.

 

[Moonflame]

If a cloud of fine particles is smoke, then clouds are smoke, fog machines make smoke, the nasty stuff that comes out when you sneeze is smoke, the steam from my coffee is smoke, the steam from my hot food is smoke, the steam when I run a bath is smoke, the air freshener I use is smoke, etc. Using that definition to make what comes from an e-cig smoke is absurd. It is vapor and should be described as such. The only difference between what we exhale and what is used in fog machines is possibly a trace amount of nicotine. I'd like to know how much nicotine is exhaled after we have inhaled it, but right now we don't know that. The fact is that the whole fight to ban smoking in businesses had nothing to do with nicotine, so it doesn't really matter, it was about all of the things in analog cigs that e-cigs eliminates. Fog machine's have already been deemed safe for inhalation by a number of studies, and we'd have been a lot better off if we had fought for our right to use our portable personal fog machines, which is really what e-cigs are. This would have been a lot mor simple if they had originally been named something other than e-cigarettes, and people hadn't touted them as a way to "smoke anywhere." The knee jerk reaction of people to anything with cigarette in the name is a big hurdle for us to jump.

 

[PhiHalcyon]

I never said that I believe second-hand vapor to be dangerous. I do not have enough information to make such an assertion. Nor do I have enough information to assert that second-hand vapor is harmless. Nonetheless, I frequently enjoy the luxury of stealth vaping wherever and whenever I may feel the urge; and am quite grateful for, and content with, having such a luxury. I feel no need whatsoever to try and demand that I be permitted to freely and openly vape where smoking is prohibited. It simply is not that important; and to whatever degree that such a liberty may be desirable, it is in no way, shape, or form important enough to insist on at the possible peril of the legal availability of the ecig itself.

 

[Darmeen]

I feel no need whatsoever to try and demand that I be permitted to freely and openly vape where smoking is prohibited. It simply is not that important; and to whatever degree that such a liberty may be desirable, it is in no way, shape, or form important enough to insist on at the possible peril of the legal availability of the ecig itself.

I am not demanding to be able to use it anywhere, I am demanding that they look at the product for what it is and not for what they THINK it is. By blindly just clumping it into the same category as analog's they are being incredibly closeminded about the potential health benefits and automatically putting people that doctors are now classifying as ex-smokers back into the cloud of REAL smoke by at the very least forcing them back into the designated smoking areas allowed by smoking bans.

Remember that most of the funding for the FDA comes from BT and BP, so they have a vested interest in protecting that funding, not public interest. I find it to be a great conflict of interest that they are allowed to evaluate any product that would come at odds with either BT or BP.

 

[mwa102464]

I for one still question the fact that if people are vaping and have no Nic in there vape it clearly is a vapor and nothing more then a steam, so the feds are in a real leagle bind here I believe becuase of there being no tobacco/Nicotine/real smoke involved in vaping. We all need to keep using that term "Vaping" also instead of this E-Cig thing too, really all the companies that now sell the E-cig should market it as a vapor ? something to change the term all together, this way the feds would have to outlaw Vaporization in public instead of this E-cig thing, Lets just not associate it with smoking because it's really not it's vaporization isnt it, can I have a real opinion back on this from someone with the right knowledge ?? Thanks

 

[PhiHalcyon]

There is only ONE issue of any importance, and that is winning the legal availability of the ecig. Any fool who tries to make the matter more complicated than that acts AGAINST the best interests of the millions of smokers who could benefit from the legal availability of the ecig; and should thus be flogged with a barbed wire whip for being so damn stupid.

 

[ChipCurtis]

There is only ONE issue of any importance, and that is winning the legal availability of the ecig. Any fool who tries to make the matter more complicated than that acts AGAINST the best interests of the millions of smokers who could benefit from the legal availability of the ecig; and should thus be flogged with a barbed wire whip for being so damn stupid.

While I am with the SPIRIT of the majority here about pressing for the education of people on what the e-cig is, and on standing up to politicians who are basing new laws on their narrow funded agendas, I agree with PhiHalcyon in his bottom-line evaluation of what we're dealing with here.

Going up against a highly-funded and organized anti-tobacco lobby HEAD ON will only result in more punitive, draconian restrictions. We may very well need to look seriously about wanting to keep this device as a life-saving alternative to combustible smoke first, then worry about public perception later.

You've already got an entire generation of Americans raised on the rabid socio-political anti-tobacco message - it's not going to go away real quick that's for sure. Sometimes you gotta deal with the hand you're dealt and then move on from there.

Realistically, and on the bright side, I only see e-cig legislative issues being tied up in courts for years to come, with appeals and counter-appeals flying around left and right, buy-outs left and right, suits and counter-suits left and right. This pending legislative quagmire, as someone mentioned already, can give us the needed time to educate the public on the e-cig before time has run out.

 

[autumnbreeze]

Hello! I've been reading this forum for a while but finally became a member because of this subject. I live in VA and am fairly new to vaping. I've not yet tried it in a public place, other than work, so I cannot say if it's been a problem for me. I'll keep you updated on that.

I am writing an email to my local delegate about excluding the ecigs from the smoking ban. During composition, I wanted to include the definition of a cigarette, as linked in the emails to Hagy. I don't know if it changed from when you linked it or not, but the first sentence seems to me that it would include ecigs. It reads, ""Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains (i) any roll of tobacco wrapped in paper or in any substance not containing tobacco;..." Ecigs are a product that contain nicotine, they're heated, and it's in a substance not containing tobacco.

What do you guys think?

I want to fight this battle against VA's law makers because it's a bunch of bs.

Thank you for having this forum and providing useful information.

 

[john doe]

you forgot i) any roll of tobacco

 

[Storyspinr]

Autumnbreeze, that is not the definition of a cigarette contained in the specific section of the Virginia Code concerning the ban. The definition doesn't include the "roll of tobacco" - that definition appears in other sections of Virginia law not pertaining the ban. Therein lies the problem we're having, since each separate part of Virginia law states something to the effect of "As pertains to this section...", meaning that definition only applies to that particular section. If the bill had been written using the same definition as appears in other sections of Virginia law, e cigs would not be banned. Unfortunately, the section applying to the ban uses the words "lighted" (they consider the LED indicator a "light", ignoring the obvious intent of the law to mean "burning"), "smoke" (they found one definition of smoke that included - erroneously, in my opinion - vapor), and the real problem for us, "any kind of cigarette". The Health Dept. decided that since the e cig is "lighted" and produces "smoke" according to one dictionary, and is advertised as and looks like a "cigarette", it falls under the "any kind of cigarette" definition. Of course, they totally ignore the purpose of the ban was to eliminate secondhand TOBACCO smoke, which is impossible for something containing no tobacco to produce. Their recommendation has been to get the law changed and bring in the "roll of tobacco" definition. Most lawmakers are unwilling to bring the ban up again legislatively for fear someone will try to stick more into it and make the ban even more restrictive (not likely to pass, but it would kill changing the definition, too).

 

[autumnbreeze]

@John Doe: After any roll of tobacco it states, "OR in any substance not containing tobacco." Meaning, they're 2 separate things. One is a product containing nicotine in any roll of tobacco the other is a product with nicotine in any substance not containing tobacco.

@Storyspinr: I understand the VA code concerning the ban doesn't use the definitions found in other VA laws. I was going to include the cigarette definition found in those other laws in an email to my local delegate to help her understand that pv's are not the same as traditional cigs. However, I left that definition out because I didn't want her to interpret it the way I did.

I believe that if the bill had been written using the same definition as appears in other sections of VA law, pv's would fall under that category. Of course, that's just my opinion.

I agree that the wording used in the actual VA smoking ban is shoddy when trying to include pv's and what they've done is a big crock of poo. All I can do is use my tiny voice to try to make them aware of how beneficial pv's are, especially in relation to traditional cigs. Awareness is key.

I've sent an email to my local delegate, which is a start. I'm also told that there will be a protest here in VA in March.