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Wednesday, September 21, 2016

Vaping Science: FBI Less Accurate?

While many in our vaping community lament the government nonsense involved with FDA "regulation" sometimes its important to put all things government related in perspective.

Take, for example, this report: "REPORT TO THE PRESIDENT Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods."

It's purpose is laudable: "... to strengthen the scientific underpinnings of the forensic disciplines, as well as on actions that could be taken by the Attorney General and the judiciary to promote the more rigorous use of these disciplines in the courtroom."

However, a bit of reading make one a bit queazy: "... to help close these gaps for a number of forensic “feature-comparison” methods—specifically, methods for comparing DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair...".

Close the gaps?

Gee, if I listen to what's said on TV, take Nancy Grace or CSI as an example, why courtrooms practically bloom with science on a daily basis...

(Er, well, maybe not...  Nancy Grace was convinced that poor old Casey Anthony was a horrific child murderer.  Oh the horror!  Casey was the subject of some of my blog posts about "circumstantial evidence."  Casey was acquitted and, at least according to her, her attorney and jurors, quite reasonably so...  Various rambling posts cover much of what's wrong with the legal system...)

If we move along to page #16 we see an indication of a gap: "... the Department of Justice (DOJ) and FBI undertook an unprecedented review of testimony in more than 3,000 criminal cases involving microscopic hair analysis. Their initial results, released in 2015, showed that FBI examiners had provided scientifically invalid testimony in more than 95 percent of cases where that testimony was used to inculpate a defendant at trial."

FBI examiners provided scientifically invalid testimony...

In 95 percent of the cases.

Hmmm, sounding a bit more like the vaping situation with the FDA.

The bottom line: The FBI said the bite marks match so everyone believes it - even when much of the time not only do they NOT match but there is no scientific basis what-so-ever for the bite mark conclusions given in court.

Now, believe it or not, people actually are put in prison by this criminal stuff.  We, the vapers, are merely deprived of our Constitutional rights to manage our own well being.

Again: FBI examiners provided scientifically invalid testimony.

(You can read on - you will mostly find that human error makes all of the various investigative techniques less accurate than they are represented at trial.  Significantly so, apparently.  But on to the point of this post.)

Perhaps we are looking to government for the wrong thing.

If the FBI cannot accurately do simple things like match hair how can we expect the FDA to more complex things like figure out if peoples live are being saved?

Seems like the FBI would be able to accurately complete an FDA PMTA.

(One also images that this will affect minorities disproportionally as certain minorities are overrepresented in the present judicial system (fuel for the "social justice" fire I am afraid).)

All in all its not just the vaper's getting the short end of the stick...

Perhaps we need to think about our total reliance on "daddy gub'ment" to save us.

Monday, September 19, 2016

Antibiotics - A Scourge on Children

About six years ago I wrote about how antibiotics are in fact a scourge on humanity (see this link).

Recently I found this article "Early infancy microbial and metabolic alterations affect risk of childhood asthma."

The summary section says (underlines mine): "Changes in the gut microbiota have been implicated in the development of asthma in animal models; however, it has remained unclear whether these findings hold true in humans. Now, Arrieta et al. report in a longitudinal human study that infants at risk of asthma have transient gut microbial dysbiosis during the first 100 days of life. They found that certain bacterial genera were decreased in these children. Moreover, adding these bacteria back to germ-free mice decreased airway inflammation, suggesting a potential causative role of the loss of these microbes. They suggest a window where microbe-based diagnostics and therapeutics may be useful to prevent the development of asthma in high-risk individuals."

So if you lose microbes in your digestive system due to antibiotics as an infant your chances of asthma increase.

We are killing our children with cleanliness and antibiotics to keep them germ free.  And germ free children are at risk of poor health.

(See "Death by Hand Sanitizer"...)

Even the FDA now recognizes the folly of the chemicals, like triclosan, I wrote about six years ago.

Too bad little Suzy and Johnny have been screwed over in the mean time...  (the better for the FDA's corporate cronies to profit from treating little Suzy and Johnny maladies).

Maybe grandma wasn't all that stupid after all with her lye soap, tinctures and "remedies."

Try looking into iodine, for example.

Saturday, September 17, 2016

Civil Disobedience with Cellphone "Tobacco Products"

"Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is a symbolic or ritualistic violation of the law, rather than a rejection of the system as a whole."

Start complaining...!!!

Trust me, a cellphone is a regulated tobacco product (don't believe me, then see the link below or this or this).

Call up the local school and say you saw it on the "internets" that cellphones control those horrific "e-cigarette things" - you saw pictures, read articles, saw it on Facebook!

Demand they stop allowing cellphones in schools, airports, anywhere else the law says "tobacco products" are not allowed.

I will gladly supply technical details, demonstration videos, pictures, sales documents, and so forth demonstrating that under the current FDA regulations they in fact are "tobacco products."

Given that the iPhone is a tobacco product we can go over at (the state web site for Massachusetts) we see why this disobedience will work (underlines mine):

Page #7: RULE 62: Student and Coach Eligibility: Chemical Health/Alcohol/Drugs/Tobacco

62.1 From the earliest fall practice date, to the conclusion of the academic year or final athletic event (whichever is latest),, a student shall not, regardless of the quantity, use, consume, possess, buy/sell, or give away any beverage containing alcohol; any tobacco product; marijuana; steroids; or any controlled substance.

Page 11: 5. Smoke Free Workplace Law language

A school policy may decide to use the state law’s definition for “smoke” or “smoking”. The state law reads “the lighting of a cigar, cigarette, pipe or other tobacco product or possessing a lighted cigar, cigarette, pipe or other tobacco or non-tobacco product designed to be combusted and inhaled.” This definition expands smoking to be any product that was manufactured with the intent of being burned and inhaled, including clove or herb cigarettes. 

Some school districts may want to add “possession of tobacco products” to the list of prohibited activities in their policy. This would allow school personnel to confiscate tobacco products from students. This policy should be limited to students because its goal is to confiscate the product from the student.

So its clear what the state is telling school districts to do - I haven't bothered to search for other states but my guess is that each defines a similar "tobacco policy."

But now since cellphones are "regulated tobacco products" it seems time to ban them from schools in a great act of former smoker civil disobedience...

The great part about this - we citizens can create "tobacco products" out of virtually anything that anyone uses in a place "tobacco products" are not allowed.

So why not do it?

FDA ENDS - It's What's for Dinner...

The FDA has tried to be very clever about what makes a vape an "ENDS" and hence something to be regulated.

If you parse the regulatory language you see that basically the term "ENDS" is simply an assertion that vaping devices "meet the statutory definition of a "tobacco product." (This discussion generally excludes "cig-a-likes" that are fully integrated devices including liquid, battery, etc.)

However, since e-liquid (the part that theoretically contains tobacco) isn't the "tobacco product" one can only conclude that you have to "consume" your ENDS...?

Doesn't make any sense, does it?

It does if you think of how a cigarette works: the "components and parts" are consumed by using (burning) the cigarette.

Not true of the ENDS - so perhaps we have to BURN or VAPORIZE our mods to consume them...

The FDA has simply made a pig into a goat and said to the vaping community: you're fucked because we say you are.

So let's go through this bit by bit:

The deeming regulations depend solely on this sentence (page #8 of this) which links a "deemed" tobacco product to a "component or part" under the Tobacco Act:

"Specifically, "Component or Part" means "any software or assembly of materials intended or reasonably expected: 1) to alter or affect the tobacco product’s performance, composition, constituents or characteristics; or 2) to be used with or for the human consumption of a tobacco product. The term excludes anything that is an accessory of a tobacco product." (quote #1)

Now things like lighters, humidors for cigars, and so forth are not tobacco products and they are not controlled or restricted by the FDA.  One imagines that these are "Accessories" which the FDA does not currently regulate.

So the thinking at the FDA would seem to be that "Component and Part" is the only way to cover what is otherwise not made from tobacco, e.g., software or a battery.

So let's think about what these words mean: "alter or affect."

That seems pretty clear - burn, heat, change state, e.g., from liquid to gas, and so on.  But what does this apply to here?

In this case its should be the "tobacco product" which is clearly "nicotine."

So what part of the FDA regulations cover nicotine exactly?

None that I can find in the regulations.

Which is interesting...

From what I see the inclusion of nicotine and ENDS is covered by this sentence on page #11:

"Products that meet the statutory definition of "tobacco products" include currently marketed products such as dissolvables not already regulated by FDA, gels, waterpipe tobacco, ENDS (including e-cigarettes, e-hookah, ecigars, vape pens, advanced refillable personal vaporizers, and electronic pipes), cigars, and pipe tobacco." (quote #2)

So let's accept this for the moment even though how ENDS meets this is not defined, specifically because its not made of tobacco...

So if an ENDS already meets the statutory definition of "tobacco product" then "alter or affect" must apply to the physical ENDS device unless the ENDS is a "component or part" of itself.

Now "components and part" really don't seem to have direct definitions in the FD&C Act except as they relate to the definitions of "drug" in  Chapter 9 - FEDERAL FOOD, DRUG, AND COSMETIC ACT 21 U.S. Code § 321 and in 21 U.S. Code § 387 defining (1) "additives" and (17) "... chemical or chemical compound in mainstream or sidestream tobacco smoke that either transfers from any component of the cigarette to the smoke or that is formed by the combustion or heating of tobacco, additives, or other component of the tobacco product."

(Again here's that pesky definition that really, truly does match that of cigarette.)

So ENDS is a tobacco product and its components and parts are, well components and parts of itself.

Also note that e-liquid is apparently not a tobacco product - so yes, Virginia, the FDA knows that nicotine is not a tobacco product.

So the "component and parts" language is talking about the components and parts of the ENDS I guess.

So the "hand wave" (like a magician) being used by the FDA comes from quote #2 - the list includes things both made of tobacco, e.g., water pipe tobacco, and things not made of tobacco, i.e., ENDS.

This is a logical inconsistency in that tobacco products cannot be made from something that is not tobacco.

But the only relationship between ENDS and tobacco is apparently how someone uses it.  It is not innately made "of tobacco."  But then quote #1 says: "... to be used with or for the human consumption of a tobacco product."

So we have to consume the actual physical ENDS device!?!?!?

So it would seem and ENDS is only an ENDS when its used as an ENDS and that would mean we have to consume it (either vaporize it and grind it up into a powder).

Unless, of course, it alters its own characteristics when we we are not consuming it...

But this is an "or" clause, as in A or B, in which case we would not be consuming it.

It would be altering itself - except we aren't consuming it at the time.

Am I right?

Take a look at the FDA web site - they are very careful to skirt around these issues.

Is this what Congress intended with the FD&C Act?

Zig Zag Live...

Allegheny 6 Pack and Doghouse at 1301 Pittsburgh St, Cheswick, Pennsylvania 15024 tomorrow, Sunday, September 18th 2016.

We starts around 1:30 PM.

Great place, great people, great fun!

Hope to see you there!

Wednesday, September 14, 2016

Chili's Part 4 - Regulated Tobacco Products

From: Todd Kueny 
Re: Your Chili's Contact - Ref# 1213419
I am dissatisfied with the situation at Chili’s regarding e-cigarettes as I have indicated in previous emails.

As you may or may not know in May of this year the FDA published broad new regulations in the Federal Register defining what a tobacco product is (see this link:

These regulations specifically include software and electronic devices such as cell phones as “components" of electronic cigarettes (as defined by the FDA) under the regulations (please see this link:

I am quite certain of this fact as I designed, built and sell the device listed in the blog post above.

Now you may think that this is utter insanity, which it may be, but unfortunately its also now an FDA regulation.

Your signs banning tobacco products must now include both iPhone and Android cell phones because they are specifically part of electronic cigarettes which we build and manufacture and which are now regulated Tobacco products under FDA jurisdiction.

I will be inspecting Chili’s restaurants near my home in the near future and I plan to work with the local authorities to ensure that no regulated tobacco product is used in your public restaurants.

Thank You
Todd Kueny

On May 1, 2016, at 10:38 AM, Todd Kueny <> wrote:
I have now spoken to your local “AD” and with Mr. Bill Himey (sp?) (214) 755-6835 regarding my recent experience with Chili’s.

Most recently Mr. Himey indicated to me the as far as Chili’s concerned vaping and smoking were “the same.”  I find this position troubling from several perspectives.

Most importantly vaping and smoking are not “the same” - not in terms of definition or physics, not in terms of treatment under the law, and not in terms of health.

To “smoke” obviously you must A) involve combustion and, if you extend “smoke” to mean “smoke cigarettes,” B) use tobacco in some form.

The device which I use, which is not an “electronic cigarette,” does not involve either, nor does it involve nicotine.  It “vaporizes” by heating, not burning, and uses the same ingredients that you find in the cake frosting served in Chili’s (see

If I wish to use my device under your current policy I am relegated to the area where people are using combustion cigarettes so I can inhale their second hand smoke.  If I am there with my young grand children they would have to accompany me.  This is both unfair and counterproductive to everyones health.

My device is no different than an inhaler in terms of function and uses the same ingredients, save for any prescription medicines which I am forced to inhale from the inhalers of others, as inhalers which are not banned within your establishments.

Next is the issue of the law.

Smoking cigarettes where I live is in fact banned in establishments such as the Chili’s near me.  As this is the law its perfectly acceptable.

On the other hand, there is no law of any kind related specifically to vaping where I live.  So vaping is in fact a perfectly legal activity.

The problem I see here is this: anyone smoking where it is legally prohibited can reasonably be asked to leave. In the case of vaping, however, there is no legality involved so the question becomes very simply: by what authority am I being asked not to engage in a legal activity?

Equating smoking and vaping outside a legal context is merely a fiction or excuse, and also, I believe, a mistake.

It seems obvious that here the “Pennsylvania Human Relations Act” (see would address this, but it doesn’t.

What is more appropriate to consider is that smoking cigarettes is a disease.  There is a long and detailed Constitutional history of persons having the right to “treat their own disease” (see

Tobacco use is a disease - clearly the DSM ( indicates it as such and it kills people, some 440,000 a year.  

Vaping, according to many reputable sources, is an effective treatment (see

Federal Courts have, over many decades, repeatedly indicated that you do have a right to "treat your own disease" in numerous of decisions.

So while its possible to pretend “smoking is vaping” and “vaping is smoking” the legal fiction created simply prevents me from addressing my personal health issues in public accomadations.

Finally, a legal fiction is problematic from the perspective of the “Pennsylvania Human Relations Act.”  

While anyone in authority in a given establishment can ask me to leave if I use my vaping device the question is whether that is an actual policy reason or simply a “catch all” reason to discriminate against me based on some other attribute(s).

Here there should be a requirement of rationality.  If, for example, “gang colors” are banned then it seems obvious that the decision to ask someone to leave is based on the science of color, that is, the actual color the person is wearing falls within the definition of a particular gang color.

If “red” is banned then it is questionable that someone would ask an individual to leave who is wearing “green.”

Yet here, by defining “vaping as smoking,” the requirement of rationality is cast aside; am I being asked to leave because I am black, or too old, or is it really because I am simply vaping?

I think you should also consider there is clear evidence (see this: that merely operating a commercial kitchen may be as or more “dangerous” than vaping.

So what does all this mean?

I think very simply that if I am in your establishment discretely vaping I am causing no harm to anyone else.  I am doing what Chili’s kitchen and other patrons are already doing, basically generating harmless aerosols.

Does Chili’s have the right to ask me to leave if I am a nuisance?  Of course.  Just like asking anyone who is too loud, or too scantily dressed, etc. to leave.

While your organization is certainly free to do whatever it likes I feel obligated to bring these facts to your attention and to no longer patronize your restaurants so long as you continue policies which I consider counter to common sense and my personal well-being.

Thank You
Todd Kueny

On Apr 19, 2016, at 12:23 PM, Todd Kueny <> wrote:

I spoke with your AD.  There seems to be some significant confusion.

First, I personally do not vape nicotine hence I am not engaged in any way it what can be considered tobacco or smoking related activity.

Second your AD told me that the Pennsylvania Liquor Control (PALCB) board required you to install the various signs indicating that "No Smoking" and "No Electronic Cigarettes" were not allowed within 50ft of the entrance.  Effectively he said the signage and, I suppose, the policy was the PALCB's "responsibility” because of an “inspection”.

This is simply false.  

I am extremely familiar and knowledgable about the laws in PA as they relate to vaping.  The PALCB does not control signage related to smoking, the PA Department of Health does.  In Pennsylvania electronic cigarettes are not regulated or controlled in any way by legislation.

This means that for any vaping device there are no national, state or local regulations prohibiting it.

If this is a corporate policy relative to vaping please provide me an explanation as to why an inhaler, for example, which is similar to an vaping device in terms of chemicals but emits a mist containing a medication, is somehow different or acceptable to use.  Also, I would like to understand the criteria for what is and is not considered acceptable in your establishment.

Thank You
Todd Kueny

On Apr 13, 2016, at 8:29 AM, wrote:

April 13, 2016

Dear Mr. Kueny,

Thank you for contacting us regarding your experience at our Pittsburgh Mills Chili's.

Please know that your comments are taken very seriously and have been escalated to the General Manager and/or Area Director. You will be contacted within two business days.


Chili's Guest Relations

Reference Number: 1213419


CONFIDENTIAL AND PROPRIETARY: This e-mail and any attachments are confidential and the proprietary property of Brinker International, Inc. and our brands, Chili’s Grill & Bar and Maggiano’s Little Italy. If this message was not intended for you, please notify the BrinkerHead who sent it and delete it from your system. Our lawyers also kindly remind you that any unauthorized review, use, distribution, copying or disclosure is strictly prohibited, and receipt by anyone other than the intended recipient is not a waiver of confidentiality or privilege.

Your Child's iPhone is a Tobacco Product

My picture is at the left - taken today.  I am holding my "PrimusZ" - a bluetooth controlled ENDS (FDA definition of a vape) device.  There are many posts on this blog about the PRIMUSz.  It has been in product available for sale for a while (years) and is and has been available for sale in a number of local vape shops.  There is ample documentation of this fact.

Here is an example post.

(NOTE: as mentioned relative to the PrimusZ is no longer operational.  However the website (and I suppose all the free software Microsoft and Google and Go Daddy use to run things like that) is also a tobacco product.)

This device works with both Android (older versions) as well as iOS.  There is also support for Mac OSX and Windows.  There are links to free GNU software as well used for on this device.

(There are other bluetooth mods around from Chinese companies, Smok I think makes or made one, for example.  They mostly worked on Android devices.)

Here is the page taken today from the very same iPhone;s App Store (search "GRX 1.0 Controller):

The app, is of course, free.  In addition to being a tobacco product it (the app) also powers anything that uses the GRX 1.0 controller.

But the app alone can't power your vape.  It requires the additional iOS software and an iPhone.

Hence they are all TOBACCO PRODUCTS.

I have posted on this in the past.

In case there is any doubt see this recent video (taken at 17:30 from the full video at the bottom of the blog).

(NOTE: Software is explicitly mentioned.  Also, all the parts and chips inside are now tobacco products too...  Wifi controllers, ARM processors, bluetooth tech, touch screens...)

So in case there was every any doubt this video makes things crystal clear.

To paraphrase (she is talking about zero-nic eliquid but the same rules apply here because, obviously, the PrimusZ contains no nicotine and is not made out of tobacco): "If your product is intended to be use for the human consumption of a tobacco product, to alter the characteristics or performance of the constituents of a tobacco product [e-liquid] then it would be a component or part and WOULD BE REGULATED."

This clearly includes iOS 9.3.5 and all prior version and I suppose all future versions.

So if your little Suzy or Johnny has an iPhone in their hands (or a computer of just about any kind save for an ancient mainframe) they would be holding a tobacco product.

Thus if they were in school with said device they would be VIOLATING THE LAW.

If they had their iPhone on a plane hey would be VIOLATING THE LAW.

Full video here (excerpt above at 17:30 or so):