Chili's Part 4 - Regulated Tobacco Products

From: Todd Kueny 

To: brinkerguestrelations@epowercenterdirect.com 

Re: Your Chili's Contact - Ref# 1213419

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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: https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-10685.pdf).

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: http://lwgat.blogspot.com/2016/09/your-childs-iphone-is-tobacco-product.html).

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 <todd@synthodeon.com> 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 http://lwgat.blogspot.com/2015/01/ejuice-in-indiana-criminalized-frosting.html).

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 http://www.phrc.pa.gov/Resources/Law-and-Legal/Documents/PA%20Human%20Relations%20Act%20(1).pdf) 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 http://www.rbs2.com/rrmt.pdf).

Tobacco use is a disease - clearly the DSM (http://www.theravive.com/therapedia/Tobacco-Use-Disorder-DSM--5-305.1-(Z72.0)-(F17.200)) indicates it as such and it kills people, some 440,000 a year.  

Vaping, according to many reputable sources, is an effective treatment (see https://www.rcplondon.ac.uk/projects/outputs/nicotine-without-smoke-tobacco-harm-reduction-0).

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: http://www.seattlepi.com/national/article/Flavoring-additive-puts-professional-cooks-at-risk-1259353.php) 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 <todd@synthodeon.com> 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, brinkerguestrelations@epowercenterdirect.com 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.

Sincerely,

Chili's Guest Relations

Reference Number: 1213419

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