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....)