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Wednesday, May 14, 2014

Reductio ad absurdum - Nictone cannot be "derived" from Tobacco

So in the context of proposed FDA regulation of electronic cigarettes we see that bad old nicotine is probably a significant target.  After all, it, in a legal sense under, say the "The Family Smoking Prevention and Tobacco Control Act of 2009" (FSPTCA), is "... any product made or derived from tobacco that is intended for ..."

And, in the context of vaping, the intention of "deeming" regulations is to include nicotine.

So let's think carefully about this.

Tobacco is a plant to so by definition it contains chlorophyll and water as well as many other things, like alkaloids, amino acids, proteins, carbohydrates, starches, and pigments.   There are many lists and discussions of this (for example here and here) - this is not rocket science and the understanding of what constitutes of plant is hopefully not in question.

So if I were to "grind up" a tobacco leaf what might I find?

Things like water, chlorophyll, dextrose, ammonia, and pectin (from the second link).

Are these things addictive?


Are these things unique to tobacco in the sense that they can be derived from no other source?


I can derive these things (water, chlorophyll, dextrose, ammonia, and pectin), as well as many others, from tobacco.

I can also buy them at Walmart.

So I think we can also agree that the authors of the FSPTCA did not intend the FDA nor anyone else to "regulate" these items.

It would be absurd.

Now there are many alkaloids such as anabasine which are present only in tobacco.

Hence to obtain this alkaloid I would be required to derive it specifically from a tobacco plant.

This chemical is a pyridine (cyclical organic compound) and is relatively poisonous.

But this chemical, derived from tobacco, is unregulated by the FDA though I think it is clear that, by "derived," the authors of the FSPTCA would intend the FDA to regulate this chemical.

But they do not.

So if we divide up what we find in tobacco we have three classes of constituent: the first I will call a common constituent, something like water, which occurs naturally outside tobacco.  The second I will call a "derivative" which is something which is a constituent but, unlike the first class, can only be derived from tobacco.

And then there is nicotine, alone in its own class.

Nicotine as I have written previously in this blog is available from many sources besides tobacco such as peppers, tomatoes, and potatoes.

Like water and chlorophyll nicotine can be derived from tobacco.

Unlike anabasine it can also derived from peppers, tomatoes, and potatoes.

Nicotine's sin regarding regulation, then, must be its addictive properties?

Well, the FDA does not believe that nicotine is addictive (see their own web site),  where they say "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. [underline mine]"

Dextrose, which is sugar, is potentially addicting too (at least WebMD thinks so).

So under what logic, or specifically how from the perspective of the FSPTCA, can nicotine be singled out for regulation.

It is both logically and legal inconsistent.

The only reason would appear to be that historically nicotine was "thought" to be addictive.

The FDA's new "deeming" apparently fails to reflect the FDAs own thinking - more or less analogous to keeping laws regarding slavery on the books because your thinking on slavery hasn't changed since the passing of the 14th amendment.

If we look at copyright law, for example, its clear what a derivative work is, i.e., what it means to derive.  Congress passed both copyright law and the FSPTCA.

Basically a clear link between an original work and the derivative - something that retains the unique aspects of the original, analogous to anabasine being only found in tobacco.

Tobacco is the "original work" and "anabasine" is the derivative - it is in some sense a subset of tobacco and uniquely derivable from it.

Nicotine, water and chlorophyll are not derivatives in this sense.  They can be derived from anything that contains them, e.g., potatoes.

They are effectively constituents of tobacco but not derivatives.

So we are now faced with an absurdity:

Since I can derive water and pectin from tobacco they must be, by definition because they can be derived from tobacco, regulated under the FSPTCA.

After all pectin is found in jams and jellies - and "intended for human consumption."

So is water.

And finally: Is the water derived from tobacco somehow different that water from other sources?

Yet another absurdity.

Of course not.

Water is water - regardless of the source.

Water squeezed out of a tobacco plant is just like water from any other source.

If we believe that the FSPTCA is intended to regulate the constituents of tobacco then by definition virtually the entire planet would be regulated by this law.

But that's not what the law says.

It says "tobacco" and clearly there exists a class of things which are uniquely derivable from tobacco.

Since tobacco contains virtually all amino acids did the FSPTCA intend to include those as well?

The animals we eat all contain the same amino acids, hence the FDA would be required to regulate all animals that humans might consume as well.

But in fact there are other laws, such as laws related to supplements, to address those constituents.

So if the FSPTCA did not intend to regulate water or chlorophyll how can it regulate nicotine, a chemical with the same properties as water or chlorophyll?

The Congress clearly differentiates between "derivatives" and "constituents" in many areas.

The FDA is taking the law into their own hands and creating a magical new class of tobacco "constituent" - nicotine.

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