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Thursday, April 25, 2019

On the Unconstitutional Nature of Flavor Bans



So what, exactly, is the legal method of e-liquid “flavor banning?”

If there is “substantial equivalence” between cup cake frosting flavoring an 0mg e-liquid (identical ingredients) how can one be “banned” and not the other?


At least in Pennsylvania from a tax perspective USB chargers, for example, have to be treated uniformly with regard to sales tax, i.e., no 40% on vape shop USB chargers and 6% at Walmart.

All e-liquid is taxed by state sales tax mechanisms.

I have argued the same is true for 0mg e-liquid as it’s identical to cupcake flavoring and differs only by “intent” of use - which fails the Pennsylvania constitution test of uniformity.

[ Crickets... ]

But on and on the Vaperatti fight “flavor bans.”  

Stepping back one sees the larger picture:  The Uniformity cause of the US Constitution (https://en.wikipedia.org/wiki/Taxing_and_Spending_Clause) says “…but all Duties, Imposts and Excises shall be uniform throughout the United States [my underline];”.  So can I have one tax rate on cup cake frosting and another on the same ingredients labeled for another purpose?

Kingdom has proven the answer is no.

Proven it.

Crickets... ]

Many other states, e.g., Wisconsin, Illinois, Nebraska, all seem to have a similar clause.

Yet all we see is dancing around…

No focus on the real problem: much "anti-vaping" legislation is simply unconstitutional.

EDIT: And just so you know, I believe Kingdom funded the challenge themselves....

Note too that 0mg "frosting flavor" + a "nic shot" => e-liquid that is not subject to a "ban." (Banning nicotine would stop tobacco, tomatoes, egg plant, and so on...)



Sunday, March 10, 2019

On the Destruction of "the Classics"



The Rosetta Stone - From Wikipedia
In the mid-1970’s I attended the University of Wisconsin, Madison.  Like many of that era I was sent “to college” as an extension of my “success” in high school.

College, as it turned out, was not much like high school.  Though I was familiar with the physical campus through sport training camps in high school I was not prepared for the more rigorous academic aspects.

After some semesters of floundering I came to realize that I was uncomfortable with the basic model of study used at the time by the University.  Based on some history course or other I formulated the idea that it would be far better to follow the educational model used by many of America’s founding fathers centuries earlier: reading the classics and studying mathematics.  I can’t really say exactly how I came to this idea at the time; the details I are now lost in the many decades that have since passed.

I signed up again for calculus and for “Mrs. Fowler’s” “Ancient Greek.”  (Prior I had never learned anything about foreign languages much less dead foreign languages.)

The first day of Ancient Greek there were perhaps thirty students in the class.  Mrs. Fowler, an imposing older woman, waded right in within the first few minutes with requirements of memorizing the alphabet and some basic noun declensions.  By the third or fourth class we were down to perhaps twelve students.  Even the woman who sat next to me studying Sanskrit abandoned the course after a few more classes.

The work was very hard; nothing like I had ever done before.  More importantly, ancient greek required intense discipline to learn.  Like the old movie “The Paper Chase” (https://en.wikipedia.org/wiki/The_Paper_Chase_(film)) one could never hide from being called on by Mrs. Fowler to recite some detail of the previous day's lesson.

Though extremely difficult I enjoyed what I was doing in college for the first time.

As time progressed I took French and Latin, linear algebra and advanced calculus, and studied Egyptian grammar.  By the end I could stumble through Xenophon on my own though Thucydides (Θουκυδίδης) was forever beyond my reach. 

Though I never received a degree in either of these disciplines the benefit of learning them was profound.  I learned how to think.  I also became interested in philology.  I began to think about how computers (and mathematics) might be applied to classical languages.  There was no such thing at the time.  Computers could not really deal with character sets such as Greek at that time much less processing say, Egyptian hieroglyphics.  But it made me think…  What if these texts were searchable via computer?  What kinds of analysis could be done via programs to aid in translation, grammar and understanding?

I was quickly able to utilize what I had learned to make a living: initially the linear algebra help with lens manufacturing.

A few years later (the early 1980’s) I helped to found a company called LEXEME. LEXEME’s goal was to be the Rosetta Stone (https://en.wikipedia.org/wiki/Rosetta_Stone) of computer languages; to allow a program to convert another program written in one programming language into another, different programming language automatically.  I considered this something far more likely to succeed than the nascent field of Artificial Intelligence (AI) developed at the time which attempted to understand human languages.  The AI-based world of “expert systems” and “natural language processing” worked on at the time ended up as abject failures. 

LEXEME’s technology, however, proved successful for clients such as Bell Labs and Boeing.  Through rigorous application of grammar and philology computer languages and their idiomatic usages in programs could be fully understood and represented in a computer.

So what did a traditional education in Classics do for me?  It taught me discipline, it taught me about about philology and gave me a basis to invent the technology used by LEXEME.

So why am I writing this?

I read an interesting article by Mary Frances Williams at Quillette (https://quillette.com/2019/02/26/how-i-was-kicked-out-of-the-society-for-classical-studies-annual-meeting/).

Ms. Williams discusses the highjacking of traditional “classics” by “social” and “citation” justice (a new concept to me) “warriors” the result of which would be, among other things, to remove the study of classical languages from the curriculum.

You can read the details at the link above.

She concludes “The ancient Greeks defined democracy as majority rule that must have equality before the law and freedom of speech. It is unfortunate that the classicists don’t know the value of their wonderful discipline and no longer accept free speech or due process. Without true equality in law, without free speech, democracy is destroyed. More than just Classics is at stake here.”

Ms. Williams, I would also add that philology and intellectual discipline are also potential victims of the high jacking of classics by the modern social and citation justice warriors.

The negative impact of a modern “university” education on a human being’s ability to think for themselves is profound: engineers that don’t know how things are physically made, failure to grasp history while repeating its mistakes, and so on.  If it were applied to the founding fathers we would still be colony of England and believe in "the vapors" as the cause of disease.

It seems to me that modern “inclusiveness” involves including every one in a growing ignorance (from https://despair.com/products/meetings?variant=2457301507): 




NOTE (EDIT): Long before the internet existed records were still kept. I found a faint reference to all of this here (see Article # 17): "A practical system for source language translation," with T. R. Kueny and P. L. Lehman. Proceedings of the National Conf. on Software Reuseability and Maintainability, pp. B-1 – B-12, Washington, DC (Sep. 1986).



Saturday, February 23, 2019

Vaping: Tobacco's Anti-Vax

For some time I have watched how the "vested interests" such as Google have demonized the idea of questioning vaccinations (see this for example).  I think there are strong parallels between this and the demonization of vaping.

First, though, let me be clear:


MMR (Measles, Mumps, Rubella) vaccines clearly contribute to the trend above (see this).  I don't think there is any scientific question that there is a causal relationship here.  Nor do I believe that their judicious use is a problem.

The MMR vaccine has existed since the 1960's.  I recall at the time my mother agonizing over whether the risk of the vaccine was worth the benefit.  The vaccine won out.  No one in my direct family contracted these diseases though older cousins (by only a few years and a few miles) had.

So what about anti-vax?

The real scientific question comes from the fact that today a child receives about five (5) times as many vaccines as provided in the 1960's (from this for example):


I think the real question, evaded by Google and all the rest, is one of quantity.

Five drinks on a night out is okay, twenty five may not be.

Seems like common sense, does it not?

When my children were small in the late 1970's and early 1980's it was clear that far too many vaccines were "required."  Outside the "medical" list above you also saw various random requirements for duplicate vaccines required for participation in things like "school" or "sports."

Though we dutifully took our children to the pediatrician to be vaccinated the school would not accept this evidence and required duplicate vaccinations.

So instead of five times think seven (7) or eight (8) the 1960's level for vaccines.

(And don't forget that vaccine makers, since the mid-1980's, are no longer liable for product problems.  Little wonder we are where we are.)

Today I am unaware of any studies looking at the effects of vaccines and their chemical constituency relative to vaccine quantity.

Instead real scientific questions about vaccines (is too many okay, what's the limit to dosages of the chemicals used, etc.) is lumped into conspiracy theory.

And anti-vax is demonetized just like the Orwellian FDA and nicotine web edits I described previously.

And recently I discovered videos of vaping disappearing from youtube.

Little wonder.

We live in Orwell's 1984.

A 1984 run by Facebook, Google, and all the rest.

AI and algorithms can now generate fully believable yet false narratives (images, text - see this for example).

What you see from these places "on line" are monetized lies and propaganda: you're the victim of sock puppets.

And so too with vaping.

Repeat it's bad long enough and people will believe it.

Would you go to a doctor, or use a parachute or drive a car if the doctor or manufacture had no responsibility for their "product" whatsoever?

Of course not.

Flu shots, by any rigorous scientific standards are simply hogwash.  Magical thinking by the do gooders who are smarter than you.

Yet this is the pablum we are served.

So too for vaping.  More and more medical studies every day show vaping superior to combustion tobacco in every way.

Yet Google removes it.

Facebook won't advertise it.

Who is really interested in your health?

Saturday, February 16, 2019

Vaperatti - Zauderer, Soda and the First Amendment

Let's again turn our attention to the false advertising requirement set forth by the FDA:

At https://www.fda.gov/TobaccoProducts/Labeling/Labeling/ucm524470.htm perhaps a third down from the top we see our old friend:

"A “covered tobacco product” is any tobacco product deemed under the deeming final rule to be subject to chapter IX of the Federal Food, Drug, and Cosmetic Act, but excludes any component or part that is not made or derived from tobacco. For example, cigars, liquid nicotine, hookah/waterpipe tobacco, and pipe tobacco would be considered “covered tobacco products,” while vaporizers or pipes that are not pre-loaded with tobacco or a tobacco-derived substance would not."

Followed (eventually) the labeling requirement:


Which we see on non-nicotine containing (0mg) products (as pointed out in this blog post).

Though may also label a non-nicotine product:


So, just to be clear, no nicotine or tobacco means that 0mg e-liquid must be labeled as containing nicotine or tobacco.


Note too that the alternative of labeling things as "tobacco" seems to have just appeared on the web site (thanks, no doubt, to a web master who, at least according to my FOIA request, is allowed to do or publish whatever they like...).

Now let's turn our attention to the ninth circuit court opinion on the labeling of "sugary soda" in San Francisco (full opinion here).

On page #3 we see a reference to "Zuaderer": "... “unjustified or unduly burdensome disclosure requirement[] [that] might offend the First Amendment by chilling protected commercial speech.” Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985)."

S.F. Health Code § 4203(a) required you to say:  "WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco."

So the idea here is that it's okay for the government to require you to say things but care must be taken not to step on the First Amendment nor tell falsehoods.

In the case of the SF soda label law "The panel held that because the required warning [for soda] was not purely factual and uncontroversial, San Francisco had not established that the plaintiffs’ constitutionally protected interest in not providing the warning was minimal under Zauderer. The panel agreed with the plaintiffs that the warning requirements – a black box warning that overwhelmed other visual elements of the ads – unduly burdened and chilled protected speech."

The SF law required you to label things in a not "purely factual" way which likely violated the First Amendment.

Following some discussion unrelated directly we reach page #15 where we see "Therefore, Zauderer’s conclusion that “an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers,” id. at 651, is best read as a specific application of Zauderer’s more general rule that a purely factual and uncontroversial disclosure that is not unduly burdensome will withstand First Amendment scrutiny so long as it is reasonably related to a substantial government interest."

So by about page #16 we get into what a non-purely factual requirement might look like (underline my own): "CTIA-The Wireless Ass’n, 854 F.3d at 1117–18; see also Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 953 (9th Cir. 2009), aff’d sub nom. Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (2011) (holding that a state’s “labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion”)."

So it would seem labeling a commercial product that does not contain nicotine or tobacco as in fact containing such would likely be unconstitutional under well established constitutional principles.

In this case the court decides in favor of allowing the "sugary" warning labels to not be displayed.

A victory for commercial free speech.

So let's now turn out attention to the vaperatti.

It seems clear that requiring any product to display a demonstrably false label, as is the case of 0mg nicotine as well as whatever else the webmaster says should be labeled as such is a direct violation of the First Amendment as it relates to commercial free speech.

Since other products, such as cupcake flavoring, contain the same ingredients but escape the labeling purely do to some ill-defined "intent" (as in sold in a vape shop but not Walmart) there is the problem of simple science: there is no nicotine or tobacco in 0mg e-liquid.

Yet these clear legal facts, which would reduce the burdensome FDA labeling requirements for many vaping related products, are simply ignored.

This is not legal rocket science.

Because I am not part of the "we" (the vaperatti) I cannot possibly understand what's "going on" in there world.

Be that as it may, there is still the problem of false labeling here.

(Crickets...)

Software, wires, and so forth are no longer required to be labeled as a tobacco or nicotine product based apparently on purely First Amendment comments found in this blog.

Removing bogus labels from items which are clearly not related to tobacco in any way is the second step.

An easy win given the existing, clearly decided legal framework described above.

After all, obesity is now a bigger "killer" than tobacco, at least for young people (see this, underline mine):

"In that 20-year period, there were about 14.7 million new cases of the 30 cancers. For at least eight cancers, including smoking-related and HIV-associated cancers, the incidence rates dropped.

But for six of the 12 obesity-related cancers — colorectal, endometrial, gallbladder, kidney, pancreas and multiple myeloma — there was a steady increase in incidence over the years, with larger increases in younger adults."

So the result in San Francisco, even in the face of rising obesity cancer rates, shows that "free speech" trumps government speech regulation.

(Crickets...)

(And to be fair to FDA Commission Scott Gottleib vape shops have so far escaped crushing regulation...  perhaps he has done more for vapers than the vaperatti...???)

I guess as a consumer I shall have to create my own "false labeling" legal challenge because it looks like no one else will.

Of course, I am wrong, this is all bullshit, I don't understand and I am not part of the royal "we"...

(Beyond this, Schrodniger's Nicotine....)

Sunday, February 10, 2019

FOIA, Nicotine & FDA Webmaster

Back on November 18th, 2018 I filed another FDA FOIA request (see this link) requesting information on why pages on the FDA website regarding the "addictiveness" of nicotine were removed.

A few weeks ago I received the following email (in part):

"... My supervisor and I met with the web posting team on Tuesday to investigate how, why, and when items were changed on the consumer updates pages, I also met with the original author of the page in question. As I suspected, the items are removed based upon how old they are, whether they are visited regularly, and whether they are about something current, as they age, they are removed. In this case we’re dealing with a 2013-2015 decision; thus, the consumer update was quite old and out of date.

The people who manage what is posted on those pages do not work for the Center for Tobacco Products, they are a centralized web team working for the entire agency. Unfortunately, their process is not captured by regulation or policy. It is purely administrative and therefore without any germane documentary evidence that we could provide. ..."

Looking at the first paragraph it's interesting to note that the topic of how addictive nicotine might be is not of interest currently.

The webmaster at FDA would seem to control what everyday vaperatti, shop owners and vaper think through the use web page statistics.

It's truly amazing the coincidence of the "teen vaping epidemic" and the lack of interest in an FDA web page indicating "... that although any nicotine-containing product is potentially addictive, decades of research and use have shown that NRT products sold OTC do not appear to have significant potential for abuse or dependence.  ..." (see archived page here).

Interesting that the "rest of us" are forced to use this website for "guidance" when the content is controlled by a "webmaster" and not a "regulator." 

Thursday, January 31, 2019

Vaperatti: Lawsuit for the Win, Ban Opposition for the Loss

I've been watching the vaperatti jet around the country attempting to strike down "flavor bans."

Seems like a good thing, doesn't it?  Perhaps not...

Let's first consider the evils of "sugary soda."  Back in June 2015 San Francisco was (according to this WSJ link) "...likening the fight against soda to the old public-policy wars over tobacco, ... city officials unanimously voted Tuesday on a package of ordinances that would make it the first in the U.S. to require health warnings on ads for sugary drinks."



Soda's bad right?  Bad for "kids." (But not as bad as JUUL...)

So why not stick big ugly "Danger Will Robison" labels on all the cans and bottles?  Save the kiddos from their wicked, inattentive parents, and so forth.

Really, how different is this from labeling 0mg frosting flavoring vape juice as containing nicotine?


Now I have maintained for a while that these labels are illegal, false advertising and dangerous (for example, misleading a poison control center).

Reasonably I see this FDA labeling requirement as equivalent to the "soda" label requirement: you put a label on your product regardless of fact or truth.

Lo and behold today the 9th Circuit, no less, with 11-zip decision said the soda labels violated the First Amendment (see WSJ today or the less enthusiastic SF Examiner article).

Hmmm....

What's the delta here?

Nothing. Zip. Nada.

Factually false labels forced by do gooders onto products.

I wrote "Science Backs the FDA Down (Vaping is Free)" a while back.  No US Constitution claim but I believe that I made it so clear the FDA's bogus position that software was a "Tobacco Product" was such nonsense they backed it down (no longer "requiring" the software in your mod to be made of plant leaves).

This is the same thing.

And now the 9th Circuit agrees (opinion here).  The opinion is long and interesting.

So, vaperatti, maybe we should consider something like this for the win?

Hell, it's an argument that doesn't even require science to win, especially considering that unlabeled cupcake frosting flavor is already free to do what it may with the same ingredients.

The fact that no one in the vaperatti bothers is really quite troubling...

All the money poured into "ban control" is a waste.  Let'm vape dog shit and go for the win.

But if we did that our jet-set life-styles would fall apart.

Lawsuit for the win...

Saturday, December 1, 2018

Chlorophyll and Billirubin Fluorescence at 460nm

Chlorophyll and billirubin fluoresce with blue light with a frequency of about 460nm.

There is an interesting link here showing the structure of heme (blood from which billirubin is derived) and chlorophyll (image from the link):


You can see how an unwound (my term) heme create the billirubin structure:

The fluorescence is described here and can be triggered with common plant lights: