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Friday, January 23, 2015

The "Right Not to Smoke"

I have been studying what legal precedents exist around FDA regulations.

I believe that legally you do not have the right to vape or smoke (yes I know about "life, liberty, ..." however from a legal perspective the state can shut you down with local laws, etc.)

However, I believe that you do have the right not to smoke because A) smoking is a disease and B) you have the right, found by many courts under the US Constitution, to treat yourself accordingly and as you see fit.

You do not have the right, for example, to use THC, a controlled substance, to do treat yourself because its regulated.

But, from what I see, you do have the right to use something legal and unregulated to treat your own disease

Again, I think this is a Constitutional right.

The details:

An interesting comparison to vaping is the "raw milk" debate.  I provide this for background only because many people believe pasteurized milk unhealthy (like smoking) and its interesting to see what the FDA does about it.

In general raw milk is forbidden by state law and the FDA has created a ban on it being shipped between states.  The idea is that many believe raw milk to be far better for you than pasteurized milk (vaping better than smoking).  As this idea grows (but as the number of significant problems from people drinking raw milk do not) companies, in order to grow, want to ship their products across state lines.


The FDA does not like this and works hard to shut down anybody doing so.

This goes back many years.


The interesting part is this issue has some Constitutional elements that may have some parallels with the future of vaping.

Bottom line: Do I have the right to do what I consider healthy for me?

In the case of using something (like raw milk) already banned or regulated by the FDA the answer would appear to be no.

Courts have found you have no right to take medicine "unapproved" by the FDA - at least in the US (though you can, and people do, go to Mexico for such treatment).

On the other hand, if you consider smoking to be a medical problem (see Tobacco Addiction DSM-305.1) courts have found that you do have a right to treat your own disease as you see fit.

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

(Note this is currently being played out in court in Australia.)

I found this link most helpful.  This is a tough slog as far as reading goes but I think well worth anyone's time who is serious about vaping advocacy's.

There's a list of cases on page 33 indicating decisions about "your right to treat your own disease."  As you can see its not new and goes back decades.  For example (cherry picked from the link above) you can see what has been decided (my italics):
  • England v. Louisiana State Bd. of Medical Examiners, 259 F.2d 626, 627 (5thCir. 1958) (“... we think it is that the State cannot deny to any individual the right to exercise a reasonable choice in the method of treatment of his ills, ....”), cert. denied, 359 U.S. 1012 (1959);
  • Erickson v. Dilgard, 252 N.Y.S.2d 705, 706 (N.Y.Sup. Oct 1962) (Refused to order blood transfusion to an adult with internal bleeding. “... the Court concludes that it is the individual who is the subject of a medical decision who has the final say and that this must necessarily be so in a system of government which gives the greatest possible protection to the individual in the furtherance of his own desires.”);
  • In re Brooks’ Estate,
    205 N.E.2d 435 (Ill. Mar 1965) (Jehovah’s Witness could refuse blood transfusion for bleeding peptic ulcer);
  • Winters v. Miller, 446 F.2d 65 (2dCir. May 1971) (59 y old Christian Scientist involuntarily committed to mental hospital and forced to receive “tranquilizers, both orally and intramuscularly”, despite no judicial finding of mental incompetence. Court held she had a right to refuse medical treatment.), cert. denied, 404 U.S. 985 (1971);
  • Canterbury v. Spence, 464 F.2d 772, 780 (D.C.Cir. May 1972) (“The root premise is the concept, fundamental in American jurisprudence, that ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body. . . .’ [quoting Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914)]”), cert. denied, 409 U.S. 1064 (1972);
  • Cobbs v. Grant, 502 P.2d 1, 9 (Cal. Oct 1972) (“... a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment.”);
So the question now becomes very interesting.

Tobacco use is a disease - clearly the DSM indicates it as such - as does the action of ANTZ and many others over decades - it kills people, some 440,000 a year.

While I may not have the right to smoke or vape because of privacy or other legal considerations I see that it may be possible to have the right to vape to treat a smoking addiction.  At least at home, i.e., not out in a public place.

This would also mean the legal access to legal products that allow me to do so.

Unfortunately the FDA's prepared response to vaping is both clever and insidious. 

By creating the legal fiction in the deeming regulations that "nicotine" is a "tobacco product" the FDA want's to eliminate your right to vape by making your treatment of your own disease (vaping so as not to smoke) in fact an extension of your disease.

Pretending that nicotine, a scientifically recognized compound found in nature many places besides a tobacco plant, is a "tobacco product" and thus subject to regulation they want to render your Constitutionally guaranteed right to treat your own disease invalid.

Then, as with raw milk, you will have to "get permission" from the FDA to vape.

But I think that vapers have some additional options...

Raw milk is and was - as listed in the lawuits and cases above - regulated.  The regulations were set in place before they were challenged.

The trick here is that currently neither vaping nor nicotine is currently regulated. 

Vapers, on the other hand, may have an advantage because they are already treating their own disease with a perfectly legal and unregulated solution: vaping and nicotine, i.e., exercising Constitutional rights.

Thus the next legal question then becomes this:

Can the FDA take away a legal thing by regulation?

The answer, unfortunately, is yes.  For example, making something a "Schedule 1" drug.

Now this works pretty simply with something like pot.  THC is present only in pot and is not a recognized USP substance (U.S. Pharmacopeial Convention).   THC isn't found in nature anywhere else so it makes sense to ban pot plants.

There's no evidence of THC in someone's body unless they use pot.

Now opiates, another equivalent to nicotine for purposes of discussion here, are a bit different.  They are manufactured and do not occur naturally. 

But again, opiates do not naturally occur in someone's body unless they consume or use them.

But nicotine is different, at least according to the CDC study listed here (see #22).  People who don't use nicotine test positive for cotinine - a nicotine metabolite.  In fact, all people would apparently test so.

So nicotine metabolites are found in everyone's body - unlike the other substances I mentioned.

And cotinine is known to play what looks like an important roll in the functioning of your body (see going back 50 years).

Thus vaping puts more cotinine into your body (as well as nicotine) - puts more of what would appear to already be there - into you.

A little different than a drug.  In fact, more like nutrition.

In fact, vitamin B12 is found in tobacco, but its not the subject of the "deeming" regulations.  And its regulated by the DHSEA.  The same law that lets natural substances like vitamins be sold without FDA approval.

So I argue that vaping is A) you exercising your Constitutional right of treating your disease of smoking with cotinine by B) utilizing a naturally occurring, USP-recognized, DHSEA chemical compound found in numerous plants. 

Further, I argue this is Constitutionally protected behavior.

Now, this is just my opinion and I do not believe that this somehow overrides state or local laws banning vaping.

Nor do I think it give you the right to blow big clouds.

But it may be a crack in the door to keep vaping free.


  1. I agree! Treating your own disease would be rightful. But keep in mind with regards to smoking, vaping can help heavy smokers to quit. However, if vaping is not regulated it could cause vaping addiction. I read an article about vaping addiction, yes vaping can be used to treat smoking addiction. But people must know that excessive use of vaping can lead to addiciton.

    By the way great article!