The Parable of the Shop Owner and the King: "Once upon a time there was a shop keeper who sold food and beverages. One day the shop keeper realized that if he put the numbers one through ten into a hat people would bet on which numbers would be pulled out and in what order. The shop owner began making a lot of money.
One day the king, hearing what was going on at this shop and other shops who learned of this game, realized that he was not receiving his fair share of taxes on the shop owners profits.
So the king decreed that all games of chance should be illegal believing that he, the king, would be able to take over the betting games and fill his royal coffers. The king then sent his sheriff to confiscate the hats from the shop owners so the betting game could not longer be player. Then he open his own grand casino, filled with the finest gold, silver and jewels to attract the bettors who used to go to the shops.
But our original shop owner, however, was very clever, and told those betting on the numbers that the prize in his shop would be paid to the first bettor who not only guessed the right number but could also calculate the sum of the remaining numbers in the hat.
The next time the king's sheriff confiscated the hat the shop owner went to the high court and made the following argument: "Oh great your honors, the king has wrongfully confiscated my hats for betting on the premise that my game is a game of chance. I do not offer a betting game but in fact a game of skill, for the winner must not only guess the right number but also be the fastest at adding and the best at remembering numbers."
After great deliberation the honored judges realized that in fact the shop owner was correct and that, though chance was involved, only a skilled individual could win the prize. The judges then granted our shop owner an exemption from the kings degree.
But the king was even more clever!
The king realized that as long as a shop owner did not hear of the great court victory the bettors would continue to support the kings casino. So he sent his minions out to the shops where they told the shop keepers "Do not fear! I, thou the representative of the king, am on your side. I will warn you whenever the sheriff is about to call and take your hat so that you may hide it."
The king had realized that once all the shop owners went to the high court and argued that their shop was no different than the original shop owner and hence exempt from the kings decree his casino would have no customers because all the bettors would bet in their local shops much closer to home.
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A little over a year ago I wrote about how the general class of air freshener products meet the definition of an FDA "ENDS" device (see link).
Recently I had a discussion about this and I realize I had missed out on some interesting new products.
For example, this air freshener system from Walmart:
- With a Great Value Automatic Spray Dispenser, you will enjoy a room full of the fragrance you choose.
- The dispenser automatically releases a fine mist with 3 timed intervals. You can select the time interval that works best for you - 5 minutes, 15 minutes or 30 minutes.
Then there is this and this from ebay.
So we discussed what, exactly, distinguishes these items from FDA "ENDS" products?
Certainly not their construction or operation.
And here in Pennsylvania it surely seems like these devices meet the definition of "electronic cigarettes:"
“Electronic cigarettes.” As follows:
(1) An electronic oral device, such as one composed of a heating element and battery or electronic circuit, or both, which provides a vapor of nicotine or any other substance and the use or inhalation of which simulates smoking.
(2) The term includes:
(i) A device as described in paragraph (1), notwithstanding whether the device is manufactured, distributed, marketed or sold as an e-cigarette, e-cigar and e-pipe or under any other product, name or description.
So let's break this down a bit.
The only thing distinguishing these devices from e-cigarettes is either "vapor of nicotine" or "simulates smoking."
Since I currently do not vape nicotine let's skip to the second item...
A google search of "simulation" with regard to the law brings up things like:
1) A "simulated contract" (from this): "Simulated contract, in Civil law, is a contract that, by mutual agreement, does not express the true intent of the parties." - but this requires two parties.
2) A "simulated sale" (from this): "A simulated sale refers to the sale in which no price or other consideration is paid or intended to be paid."
3) And even simulated sexual behavior in various contexts: "(1) “minor” means any person under the age of eighteen years; (2) (A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated— (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person;"
But these would not seem to apply here.
On the other hand, these faux cigarettes designed for actors (as in freedom of speech) would:
Clearly I am not simulating "burning" - Wikipedia defines "smoking" as "Smoking is a practice in which a substance is burned..." These items would be banned based on "... any other substance and the use or inhalation of which simulates smoking." (Other substances might include, for example, water vapor... after all, humidity in Pennsylvania is not 0%)
So exactly what is not allowed in Pennsylvania?
Pretending to "smoke" as you would in grade school using a stolen cigarette (you are inhaling a substance, a vapor actually: water vapor)?
Clearly this is not well defined or even rationally defined.
I suppose they expect to go after people blowing out big clouds of vapor.
Yet, of course, vapor is not smoke.
I have a giant orange phone charger which I use to vaporize some of the ingredients of cake frosting.
How, exactly, can this be a simulation of smoking?
The issue here is one of force, not logic or science.
It looks bad so it's banned I guess.
This is complete and utter nonsense. Legal mumbo jumbo trying to express an intent.
And failing.
The FDA, on the other hand, relies on "nicotine" - but only nicotine from tobacco.
Another faux distinction.
But as I think this over, the real problem for the FDA is also "dual use." The FDA "deems" lighters as "accessories" to "tobacco products." Similarly for rolling papers, plastic extenders from the 1950's to make you look cool, etc.
Since these have other uses they must be left out of the regulation. Just like pure, chemically created nicotine not "derived" from tobacco (as I have written about before).
These "accessories" are acknowledgement of "dual use," plain and simple. The class of things we wish we could regulate but can't.
We will see that, for example, 18650 batteries are "accessories" and not "components" of an ENDS device (unless built in, of course).
SO what does this have to do with the parable?
The FDA doesn't want us to see that virtually everything is an "accessory" - like a lighter - that has another purpose other than vaping related.
You are the ignorant shop owner.
The same is true of Pennsylvania.
You pay taxes because you don't realize what's not a "dual use" item.
Duh!
One day the king, hearing what was going on at this shop and other shops who learned of this game, realized that he was not receiving his fair share of taxes on the shop owners profits.
So the king decreed that all games of chance should be illegal believing that he, the king, would be able to take over the betting games and fill his royal coffers. The king then sent his sheriff to confiscate the hats from the shop owners so the betting game could not longer be player. Then he open his own grand casino, filled with the finest gold, silver and jewels to attract the bettors who used to go to the shops.
But our original shop owner, however, was very clever, and told those betting on the numbers that the prize in his shop would be paid to the first bettor who not only guessed the right number but could also calculate the sum of the remaining numbers in the hat.
The next time the king's sheriff confiscated the hat the shop owner went to the high court and made the following argument: "Oh great your honors, the king has wrongfully confiscated my hats for betting on the premise that my game is a game of chance. I do not offer a betting game but in fact a game of skill, for the winner must not only guess the right number but also be the fastest at adding and the best at remembering numbers."
After great deliberation the honored judges realized that in fact the shop owner was correct and that, though chance was involved, only a skilled individual could win the prize. The judges then granted our shop owner an exemption from the kings degree.
But the king was even more clever!
The king realized that as long as a shop owner did not hear of the great court victory the bettors would continue to support the kings casino. So he sent his minions out to the shops where they told the shop keepers "Do not fear! I, thou the representative of the king, am on your side. I will warn you whenever the sheriff is about to call and take your hat so that you may hide it."
The king had realized that once all the shop owners went to the high court and argued that their shop was no different than the original shop owner and hence exempt from the kings decree his casino would have no customers because all the bettors would bet in their local shops much closer to home.
--------------------------
A little over a year ago I wrote about how the general class of air freshener products meet the definition of an FDA "ENDS" device (see link).
Recently I had a discussion about this and I realize I had missed out on some interesting new products.
For example, this air freshener system from Walmart:
- With a Great Value Automatic Spray Dispenser, you will enjoy a room full of the fragrance you choose.
- The dispenser automatically releases a fine mist with 3 timed intervals. You can select the time interval that works best for you - 5 minutes, 15 minutes or 30 minutes.
Then there is this and this from ebay.
So we discussed what, exactly, distinguishes these items from FDA "ENDS" products?
Certainly not their construction or operation.
And here in Pennsylvania it surely seems like these devices meet the definition of "electronic cigarettes:"
“Electronic cigarettes.” As follows:
(1) An electronic oral device, such as one composed of a heating element and battery or electronic circuit, or both, which provides a vapor of nicotine or any other substance and the use or inhalation of which simulates smoking.
(2) The term includes:
(i) A device as described in paragraph (1), notwithstanding whether the device is manufactured, distributed, marketed or sold as an e-cigarette, e-cigar and e-pipe or under any other product, name or description.
So let's break this down a bit.
The only thing distinguishing these devices from e-cigarettes is either "vapor of nicotine" or "simulates smoking."
Since I currently do not vape nicotine let's skip to the second item...
A google search of "simulation" with regard to the law brings up things like:
1) A "simulated contract" (from this): "Simulated contract, in Civil law, is a contract that, by mutual agreement, does not express the true intent of the parties." - but this requires two parties.
2) A "simulated sale" (from this): "A simulated sale refers to the sale in which no price or other consideration is paid or intended to be paid."
3) And even simulated sexual behavior in various contexts: "(1) “minor” means any person under the age of eighteen years; (2) (A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated— (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person;"
But these would not seem to apply here.
On the other hand, these faux cigarettes designed for actors (as in freedom of speech) would:
So exactly what is not allowed in Pennsylvania?
Pretending to "smoke" as you would in grade school using a stolen cigarette (you are inhaling a substance, a vapor actually: water vapor)?
Clearly this is not well defined or even rationally defined.
I suppose they expect to go after people blowing out big clouds of vapor.
Yet, of course, vapor is not smoke.
I have a giant orange phone charger which I use to vaporize some of the ingredients of cake frosting.
How, exactly, can this be a simulation of smoking?
The issue here is one of force, not logic or science.
It looks bad so it's banned I guess.
This is complete and utter nonsense. Legal mumbo jumbo trying to express an intent.
And failing.
The FDA, on the other hand, relies on "nicotine" - but only nicotine from tobacco.
Another faux distinction.
But as I think this over, the real problem for the FDA is also "dual use." The FDA "deems" lighters as "accessories" to "tobacco products." Similarly for rolling papers, plastic extenders from the 1950's to make you look cool, etc.
Since these have other uses they must be left out of the regulation. Just like pure, chemically created nicotine not "derived" from tobacco (as I have written about before).
These "accessories" are acknowledgement of "dual use," plain and simple. The class of things we wish we could regulate but can't.
We will see that, for example, 18650 batteries are "accessories" and not "components" of an ENDS device (unless built in, of course).
SO what does this have to do with the parable?
The FDA doesn't want us to see that virtually everything is an "accessory" - like a lighter - that has another purpose other than vaping related.
You are the ignorant shop owner.
The same is true of Pennsylvania.
You pay taxes because you don't realize what's not a "dual use" item.
Duh!
Never have paid taxes on any dual use item...nor on individual components (batteries or tanks not in a kit) since they don't meet the definition in the law. Is a battery or mod by itself capable of producing vapor? No. Is a tank by itself capable of producing vapor? No. Therefore they don't meet the definition in the law and are not taxable.
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