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.