Bans: Illegally Usurping Your Constitutional Rights

From the Boulder, CO "vaping ban" web page (https://bouldercolorado.gov/vaping-and-tobacco-regulations):

"A tobacco product is a product which contains, is made or derived from tobacco or used to deliver nicotine, synthetic nicotine or other substances intended for human consumption. This includes products whether heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, bidis, snus, nicotine product, mints or hand gels."

So let's take a look at this.

Firstly, it defines anything that could "deliver ... other substances intend for human consumption" as "tobacco products" (note the use of "or" between the clauses.

I suppose on the surface this is fine, especially if this was all (all in the sense of just defining tobacco products) the ordinance did, but it goes on to say that what the ordinance does:

• Raising the age to purchase to 21 for tobacco products
• Limiting any one retailer from selling more than two electronic cigarettes or four associated products including refills to any one person in any 24-hour period
• Banning the sale of flavored tobacco products to be used in an electronic smoking device (temporary menthol flavored products exception, see bullet below) in Boulder
• Restricting the ability to sell menthol flavored electronic cigarette products to only 21 and over age restricted businesses until Dec. 31, 2019. After Jan. 1, 2020 the sale of menthol flavored electronic cigarettes in the city of Boulder is completely prohibited.

Now think about this.

It will be selectively enforced against vape shops only even though it covers virtually anything any human being might inhale (perfume) or consume (a hot dog).

Clearly a hot dog bun is a "tobacco product" under this ordinance as it falls under "deliver ... other substances intend for human consumption" (it delivers a hot dog to your mouth for you to consume) so hot dogs should be subject to the restrictions above as well as any e-liquid or vape supply.  I suppose too, your hand might also be considered a "tobacco product" for the same reason.

Of course, Colorado's vaunted "THC products" are also, at least theoretically, restricted as well as all food, all perfumes, air fresheners, cooking products, baking products, medications, etc.

So exactly how is this different than creating a law that, as an example, allows for "public drinking fountains" but only allowing white people to access it?

It's not...

The "vaping ban" would be selective enforcement of a general law and, I think, a serious problem in that it can be used to discriminate otherwise legal activity and to take away peoples access to otherwise legal products.  I have written about the right to "treat your own disease," for example, which the government cannot unreasonably take away.

Certainly a police officer can ticket only one of several cars speeding down the highway and a judge would not accept a "selective enforcement" argument that the ticket is invalid because others were also speeding (see https://law.stackexchange.com/questions/24766/selective-enforcement-vs-equal-protection).

But I think that this law is so ridiculously broad and encompasses virtually all aspects of human "consumption" that it would be found invalid.

But rather than have some shlub vape shop owner get a ticket and fight it...

We cry,

We whine on Facebook.

Crying like small children in a haunted house.

This law violates your Constitutional rights very clearly.  The Constitution's 4th Amendment says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

How, exactly, are you secure when a law specifically allows law enforcement to arbitrarily pick and choose what to enforce and who to enforce it against?  After all, anything you might "consume" could be construed as a "tobacco product" under this.

Or, think of it this way, this law make kids eating cup cakes flavored with 0mg King Arthur Coconut Flavoring criminals (see the previous post).

You are being led down a false path...

"Vaping leadership" is doing nothing to stop this injustice.

Vapers just sit and cry about what they are losing.

I am not aware of a single case where this legal fraud is being fought in the courts.

(The Colorado "Gay Cake Case" shows that unreasonable Colorado laws can and should be struct down - https://icma.org/blog-posts/colorado-cake-maker-wins-same-sex-marriage-cake-case-narrow-opinion?gclid=EAIaIQobChMInMGPm_aq5QIVD1YMCh1IAw8pEAAYASAAEgL3pvD_BwE).

How is this any different?

Banning or restricting anything for "human consumption" and then selectively picking on vape shops.

Still no CASAA.

Still no legal action.

Nothing...

And you lose more of your rights.

Ask yourself why this is going on.

(see also: https://lwgat.blogspot.com/2019/04/on-unconstitutional-nature-of-flavor.html)...

Bans: You're Not Calling Them On It...

The 0mg Loophole

As the noose tightens around the vaping industry one has to ask: Why does the FDA not bother mods? Why do they and state, municipalities, etc. go after flavors? (Of course we know it's "for the children" but hold on for a second...)

You, the vape shop owner, are being led down the garden path.  You are the victim of sleight of hand by government and your leaders.

No, no, don't think about facts.

Panic, run, close down, whatever.

No, no, don't follow reason.

Don't think about this...

STOP.

Take a deep breath.

Think for one minute PLEASE...

Flavored propylene glycol and vegetable glycerin are used throughout the baking industry.  They are staples in kitchens both commercially and at home.  They are exactly the same thing as 0mg e-liquid.  They are vapable.

These products, see King Arthur Coconut Flavor for example, are 0mg e-liquid (though a loophole still allows them to be sold...)

If a vape shop sold King Arthur Coconut Flavoring right next to some 0mg e-liquid how could the two be separated from a legal or regulatory perspective?

Answer: they can't because they are physically the same thing.

It's only through the "magical thinking" of "saving children's lives" that one is killing our children while simultaneously the other is served to those same children at the middle school bake sale...

(In PA, in a lawsuit won by Kingdom Vapor,  PA tried to tax a USB charger sold in a vape shop differently than one sold at Walmart.  Same nonsense, and the state lost...)

So if I put King Arthur Coconut Flavoring into my vape shop, sell it, and someone vapes it wouldn't the state have to ban King Arthur Flavoring sale statewide?

Of course they would.  It's the exact same thing as e-liquid AND it's a vaping product.

I could also inject nicotine into Glade plug-in and sell it.  It's a vape because it's inhaled and contains nicotine.

Would it be banned?

Now it's e-liquid, right?

(The manufacturers would fight it but the law will drag them into the fight...)

I believe that mods and software are not "tobacco products" because I called the FDA out on it (see this).  I made an iPhone and an Android phone "tobacco products" by using them to control mods.  I wrote letters to Apple and Google explaining how they were culpable for selling tobacco products to children.  After a few months the FDA changed its tune and decided not to label software and electronics as "tobacco products."

Gee, I wonder why?  Can't have little Suzy at school with a "tobacco product" now can we?  Oh wait, it's supposed to be a phone but it's a tobacco product.

Instead of whining about the law, turn the law against itself. 

Turn the law against physically similar products to make the vendors of those products an ally.

Take things to their logical, legal conclusion: Require the ban all all frosting flavoring.  Make the baking and Glade plug-in people work for us by roping their products into the ban.

It works.

I believe that I did it and I believe that someone other there can do it too.

Vaperatti: Who Owns the THC Fail?

I am intrigued by this leafly.com article (right) that tracks the path of illicit vapes from China to some kids' lungs in a hospital or on a coroner's slab in the USA.

The interesting part is two fold.

First, how much "government" is not involved along the way.  From customs, to health inspectors, to local business tax law, and so on. 

Clearly, in reading through the article, the State of California is responsible for a major portion of this debacle.  LA's "skid row," for example, is a major source of materials for the problem: fake boxes, "honey cut," and so on.

Second, I have learned from parsing through a lot of Facebook that "legal" THC vape carts are not necessarily that great in terms of quality.  Various folks complaining of "breathing problems" after using "government sponsored" THC vape carts.  I wonder what these are cut with (see "Honey Cut" in the leafly.com article).

So where is the "vaping leadership" on government's failure to even notice the THC problems? 

Clearly the folks selling this stuff on LA's skid row are worried about it.  But California isn't.

Why not call this out?

Why not point out that "government" - the very people taking your vaping rights away - are responsible for allowing this in the first place?

In my experience vape people are reasonably diligent in checking the quality of what they make and sell.

California can ban "flavors" yet lets LA's skid row run unimpeded, unregulated and uncontrolled.

Why isn't anyone asking about "Honey Cut?"

In fact, what is being used in "legal" THC vape carts?

Yet our "vaperatti" don't call this out...

Don't ask these questions.

There's a clear link between THC carts and injury and death.

Yet we don't exploit it.

Hence we are the victims.

Lower, now, then smokers who at least are wise enough to use something safer than vaping.

You are a "Vaping Denier" and you are Dumb

If you are reading this you are a “vaping denier.”

Obviously vaping is killing everyone: us, our community and our “children.”

It's ruining our climate, our lives, our children's lungs and future by poisoning our environment with second hand vape, “popcorn lung”, and so on.

Just look at Facebook and the internets!

Because you vape clearly you don’t believe how bad it is hence you are a denier.

The good, kind people in Michigan, in NY, at the FDA and CDC, at Facebook clearly are trying to help you understand why you are wrong.

They know.

Why don't you listen?

That’s why your Facebook spelling corrector doesn’t know what “vaper” is, it’s much better if you meant “caper”, not “vaper.”  (Google thinks "vaper" is a typo...)

That’s why vaping hash tags disappear, why spelling correctors deny vaping.

You must trust your betters.

Fortunately, for the rest of us who aren’t deniers, you believe you have no rights (smokers are, after all, lower than junkies).

Fortunately you think your life should be regulated (and yes, you are too dumb to make good decisions).

Fortunately you trust no one to stand up and have a voice.

Fortunately you don’t contribute a dime to vaping as a cause.

Fortunately you think someone besides you cares about vaping (where' the next free circus vaping give-away).

Fortunately you think someone else is responsible for your behavior.

Fortunately you think running ads and more "media time" will save you (as if anyone will sell it to you).

Fortunately you think your congresspersons care and do anything but discard your comments.

Fortunately you think simple truth will overcome your betters understanding of what's good for you.

Fortunately you believe you cannot defeat the FDA and media with facts or science (who would believe those anyway).

Fortunately you think that legal victories in other, similar areas cannot be applied to vaping.

Fortunately you think only expensive lawyer who "knows the FDA" can accomplish anything in your favor.

And most importantly you trust the people who put vaping into the position it's in today to fix these problems for you.

How's this working out for you, vaping denier?

You are a denier and you are dumb.

Don't wake up and think for yourself.

Everything you are told is told to you because you are too dumb to think for yourself.

You need to remain ignorant.

"We" know better...

------------

Here are some materials to reenforce your denial (don't follow these links, they might perturb your comfort with failure...):

https://lwgat.blogspot.com/2014/05/in-consideration-of-children-with.html

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

https://lwgat.blogspot.com/2017/10/casaa-vaping-on-plane-redux.html

https://lwgat.blogspot.com/2019/02/vaperatti-zauderer-soda-and-first.html

https://lwgat.blogspot.com/2018/05/schrodingers-nicotine-not-derived-from.html

https://lwgat.blogspot.com/2016/05/how-government-kills-vaping-and-hoxsey.html

https://lwgat.blogspot.com/2017/10/parallels-between-cnc-firearms-and-diy.html

https://lwgat.blogspot.com/2017/08/google-committed-to-suppression-of.html

https://lwgat.blogspot.com/2018/04/science-backs-fda-down-vaping-is-free.html

The Shame of the FDA

We hear a lot from many corners of the US that nicotine will seduce our children into smoking, brain damage, lives of utter despair, and on and on.

Most recently the small vape shops are in agony over the acceleration of the PMTA for eliquid from the FDA.

This exactly the agony the FDA wants.

The reason?

Opioid deaths.

Remember all your friends like Oxy Contin, etc. are all FDA approved.

According to this study children and adolescent are killed by these drugs at an alarming rate:

Thousands since 1999.  Not to mention, of course the "normal" forty thousand (40,000+) deaths a year in the general population.

The real question the "vape shops" should be asking is this:

"Why vaping when children are being killed by other FDA approved drugs...?"

Of course, the FDA and friends will quickly try to point out that these are two different things.

Unrelated.

But they are not.

Every ounce of energy put into vaping takes away from saving the lives of children (and everyone else) dying because of the opioid crisis.

Want to win the vaping war?

Start asking the FDA to publicly explain why nicotine (which is not even exclusive to tobacco) outweighs actual deaths...

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?

See: https://lwgat.blogspot.com/2015/01/ejuice-in-indiana-criminalized-frosting.html and https://lwgat.blogspot.com/2018/06/kingdom-vapor-wins-against-state-of.html

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...)

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).

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?

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....)

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." 

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...