Legal Status Update – 11/27/2010

   Posted by: bigBlog   in Air

On September 23 the U.S. Court of Appeals – D.C. heard arguments about lifting the ban placed by the FDA on the importation of electronic cigarettes to the U.S. This is a nice overview of the arguments presented. It is a perspective of an intelligent adult that doesn’t have a law degree.

The pleadings to halt the FDA’s action of seizing e-cig shipments until the case is heard can be found here.

kristin made this comment on the eCigarette-forum which seems to sum up the motivations of the players in this game – BT (big tobacco), BP (big pharma), FDA (big government) –

The Family Smoking Prevention and Tobacco Control Act also gave the FDA the power to regulate tobacco, but specifically stated that the FDA cannot treat tobacco as a pharmaceutical drug and cannot regulate tobacco to be 0 nicotine. That doesn’t mean that they couldn’t require BT to reduce the nicotine to nearly nothing, as long as it’s not zero. The chances they will do that are pretty slim, though, because they are in Big Pharma’s pocket and if smokers all quit because of no nicotine, BP won’t have any more smoking customers to buy their nicotine cessation products and the government will lose billions in tobacco taxes!

The SE vs. FDA was ruled in SE’s (SE = Smoking Everywhere – an e-cig company) / NJOY’s favor by Judge Leon in January, but the FDA appealed [its injunction against seizing shipments in March] and now the case is being considered by the U.S. Appeals Court. NJOY joined the case back in May 2009 as a co-plaintiff. Currently, SE has backed out of the case and only NJOY is continuing the fight.

Now an interesting aspect of the situation was recently presented over the patents controlling these smokeless devices in European markets.

Meanwhile in California, the Attorney-General-and-Governor-elect Jerry Brown reached an accord with several e-cig manufacturers regarding advertising and selling the devices to minors. In this Reuter’s article you should remember that any references to harmful chemicals in e-cigs was taken from the FDA’s less-than-high-school-level lab report. For example, it mentions diethylene glycol, which is used as a humectant for tobacco, was found in the liquid of 1 of 18 cartridges tested, at less than 1%. However, there was no diethylene glycol reported in the vapor that is actually inhaled. The most telling fault of the report, though, was the omission of the level of tars created by e-cigs. As you can see, the author of the Reuters article is clueless about these ZERO tar devices.

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