New York Sales Ban Step 2

[Uma]

Found this at ecf posted by YVilla, concerning what actions to take next.

copy/pasted: (I doubt they'll mind)

New york sales ban next steps

New York Next Steps - A1468/S695-2011

Now that the Assembly Health Committee has voted in favor of A1468, the bill will at some point be sent to the Assembly floor for a full Assembly vote. (As of 1/25/11 it was sent to the Codes Committee, but from there it will be sent either to the Health Committee again for any suggested revisions, and then to the floor, or possibly directly to the floor). Section 2 of the bill (starting at line 37) purports to ban all sales of e-cigarettes in New York (unless and until approved by the FDA as a cessation product), while Section 1 only bans sales to minors.

For New Yorkers, the next step is to get a face-to-face meeting with your own Assembly member, when they are at home in their district office. This is usually on Thursday and Friday. Bring your e-cig, educate him or her, bring Dr. Siegel's letter and Journal article. Ask for an amendment striking Section 2 of the bill when it gets to the floor, so that the bill simply bans sales to minors!

For those anywhere who have plenty of energy and can continue contacting other Assembly members with letters, phone calls and faxes, please do. HOWEVER, please be aware that we still think the chances of actually beating this in the Assembly are slim, so don't do this if you don't have the staying power to seriously ramp up your efforts when it comes to the Senate Health Committee. For the Senate Health Committee IS where we have the better chance of prevailing and killing or amending this bill.

Here is a PDF containing contact information for all 150 members of the Assembly. It is the best we have, but be aware that it does not reflect new or departed members as of the last election. For example, Jonathan Bing is on this list, but he is now a Senator, so all the contact info for him on this list is not valid. Nonetheless, for the majority of the Assembly, this list is very useful. It can always be cross-checked with the Assembly website member list, found here, but as of this posting, it is not updated either!

The Assembly members who most importantly need to be reached are party leaders (both R and D, as they establish caucus policies to support or oppose various bills, and the Ds in leadership decide what bills to run and when), and all Rs in the Assembly, who are far more likely than Ds to oppose the bill and/or support amending the bill to only ban sales to youth.

For everyone, we are going to be working on trying to get the Senate Health Committee to hold a public hearing on their version of this bill - S695-2011. Here is the bill on the Senate Website. Whether to hold a public hearing is at their discretion, so that's why we have to work on them to do so. If one is scheduled, it will be critical to mobilize as large a gathering of people to attend as possible, whether you plan to actually speak at it or not. Such an event is really where we have to show our strength in numbers.

And also for everyone, below you will see the full contact list for the Senate Health Committee. There is no indication yet of when this session they will be considering S695-2011. We will be watching the Health Committee agenda closely, and will publicize any scheduled action on this bill widely. Please remember, a critical point to make in any contact is that we urge them to amend the bill, by striking Section 2. We support prohibiting sales to minors.

Here is a pre-written template letter suitable for faxing or mailing. Feel free to add content or modify as you wish. Be sure to insert the Senator's name at the beginning, and sign your name at the end! If you are a New York resident, be sure to include your address.

Click Here to Download Pre-written Word Doc Letter

Senate Health Committee - Republican Members

Chair: Kemp Hannon

408 Legislative Office Building

Albany, NY 12247

P: 518-455-2200

F: 518-426-6954

Martin Golden

188 State Street Room 504, Legislative Office Building

Albany, NY 12247

Phone: (518) 455-2730

F: 518-426-6910

James L. Seward

188 State Street Room 711B, Legislative Office Building

Albany, NY 12247

Phone: 518) 455-3131

F: 518-455-3123

Greg Ball

817 Legislative Office Building Empire State Plaza

Albany, NY 12247

United States

Phone: (518) 455-3111

Fax: (518) 426-6977

Hugh T. Farley

Room 706 Legislative Office Building

Albany, NY 12247

Tel: (518) 455-2181

Fax (518) 455-2271

Charles J. Fuschillo, Jr.

Room 615 LOB

Albany, New York 12247

518-455-3341

F: 518-426-6823

William J. Larkin, Jr.

Room 406, Legislative Office Building

Albany, NY 12247

(518) 455-2770

F: 518-426-6923

Catherine Young

Room 513 Legislative Office Building

Albany, New York 12247

(518) 455-3563

fax: (518) 426-6905

Roy J. McDonald

188 State Street Room 306, Legislative Office Building

Albany, NY 12247

Phone: (518) 455-2381

Fax: (518) 426-6985

Senate Health Committee - Democrat Members

Thomas K. Duane

430 State Capitol Building

Albany, NY 12247

Tel: (518) 455-2451

Fax: (518) 426-6846

Velmanette Montgomery

711 Legislative Office Building

Albany, NY 12247

Tel: (518) 455-3451

Fax: (518) 426-6854

Andrea Stewart-Cousins

805 Legislative Office Building

Albany, NY 12247

(Tel.) (518) 455-2585

(Fax) (518) 426-6811

Malcolm A. Smith

188 State Street Room 909, Legislative Office Building

Albany, NY 12247

Phone: (518) 455-2701

Fax: (518) 455-2816

Eric Adams

188 State Street Legislative Office Building, Room 915

Albany, NY 12247

Phone: (518) 455-2431

Fax: (518) 426-6856

Michael Gianaris

310 Legislative Office Building,

New York 12247

Phone: (518) 455-3486

Fax: (518) 426-6929

Gustavo Rivera

420 State Capitol Building,

New York 12247

Phone: (518) 455-3395

Fax: (518) 426-6858

Semicolon delimited emails:

Hannon@senate.state.ny.us; golden@senate.state.ny.us; seward@senate.state.ny.us; gball@senate.state.ny.us; farley@senate.state.ny.us; fuschill@senate.state.ny.us; larkin@senate.state.ny.us; cyoung@senate.state.ny.us; mcdonald@senate.state.ny.us; duane@senate.state.ny.us; montgome@senate.state.ny.us; scousins@senate.state.ny.us; masmith@senate.state.ny.us; eadams@senate.state.ny.us; gianaris@nysenate.gov; jrivera@nysenate.gov

Comma delimited emails:

Hannon@senate.state.ny.us, golden@senate.state.ny.us, seward@senate.state.ny.us, gball@senate.state.ny.us, farley@senate.state.ny.us, fuschill@senate.state.ny.us, larkin@senate.state.ny.us, cyoung@senate.state.ny.us, mcdonald@senate.state.ny.us, duane@senate.state.ny.us, montgome@senate.state.ny.us, scousins@senate.state.ny.us, masmith@senate.state.ny.us, eadams@senate.state.ny.us, gianaris@nysenate.gov, jrivera@nysenate.gov

Final Note: For updates on needed action in New York, you can always check CASAA's Call to Action page on New York, as after a short while I will no longer be able to edit this post. It is here:

http://www.casaa.org/cta/article.asp...eID=114&l=a&p=

[Uma]

YVilla continues:

And to start this "next steps" discussion and action off, here is a letter faxed tonight to the Assembly Minority Counsel (who called to ask us for our position on the bill) in CASAA's name, and to the three dissenting members of the Assembly Health Committee:

Attention: Allison Kane

New York State Assembly Minority Counsel

Re: A1468

The Consumer Advocates for Smoke-Free Alternatives Association (CASAA) urges that A1468 be amended by the striking of Section 2, beginning at line 37 of the bill's text. Should the bill pass and become law as written, Section 2 as intended by its sponsors will effectively ban the sale of electronic cigarettes to adults in New York State, unless and until approved by the FDA as "TOBACCO USE CESSATION OR HARM REDUCTION PRODUCTS OR FOR OTHER MEDICAL PURPOSES AND ARE BEING MARKETED AND SOLD SOLELY FOR THAT APPROVED PURPOSE".

CASAA fully supports a ban on sales to minors, but should such an outright sales ban be put into effect the health of many of our members, and thousands of other New Yorkers, will be threatened. Numerous small businesses in New York State will be forced to close as well. Electronic cigarette consumers, typically adults who smoked for many years and who had been unable to quit despite numerous attempts, have reaped a multitude of health and other benefits from switching to smoke-free electronic cigarettes as an alternative to traditional combustible cigarettes. But with a sales ban in effect, many would be forced to go back to smoking cigarettes, or required to travel to other states and/or to purchase electronic cigarettes from a newly created black market in New York.

Enclosed with this letter is one opposing this bill sent to the Assembly Health Committee by Dr. Michael Siegel, an expert in the field of tobacco control at the Boston University School of Public Health. Dr. Siegel explains that the bill's stated justification is factually inaccurate, and he discusses his recently journal-published comprehensive review of the scientific evidence about the safety and effectiveness of electronic cigarettes. He goes on to ask: "Why would the New York State Assembly want to take away from both current smokers and ex-smokers the choice to use a product that is demonstrably much safer than cigarettes and which also appears to be far more effective than nicotine replacement therapy in reducing both the craving and desire to smoke?"

Dr. Siegel's conclusion as to the effect of A1468 is: "There are few public policies that, if enacted, will almost certainly result in an increase in morbidity and mortality. Assembly Bill A01468 is, unfortunately, one of them".

Other public health experts and anti-smoking advocates agree that electronic cigarettes are far less hazardous alternatives to cigarette smoking and pose no known harm to users or nonusers, including the American Association of Public Health Physicians (AAPHP), the American Council on Science and Health, and Smokefree Pennsylvania. CASAA strongly supports the AAPHP's two petitions to the FDA to classify and regulate e-cigarettes as tobacco products, and to truthfully inform smokers that these products are far less hazardous alternatives to cigarettes.

Regulations.gov

Regulations.gov

A1468 wrongly characterizes the very purpose and intent behind the marketing and use by consumers of electronic cigarettes, in its insistence on FDA approval as a smoking cessation (drug) product. Electronic cigarettes are an alternative tobacco product, the functional equivalent to traditional cigarettes, only without the combustion, the tar, the carbon monoxide, and the thousands of other toxic and even lethal components of smoke.

Indeed this fundamental error in the bill creates substantial legal ambiguities and would clearly therefore invite costly litigation were it to pass, not to mention additional (and totally unnecessary) costs on state and local taxpayers for enforcement and routine adjudication, and a further burden on already overwhelmed police departments and courts in New York.

As for the litigation the bill would invite, in January 2010, DC District Court Judge Richard Leon agreed in a sharply worded ruling that the electronic cigarette, when marketed as a tobacco product, cannot be regulated by the FDA as a drug product, as follows:

The Court has already concluded based on the information before it that the electronic cigarettes marketed by plaintiffs are not intended for treating the disease of nicotine addiction. To the extent those products are marketed as providing the same experience as traditional cigarettes but without the negative health consequences associated with tar and smoke, they fall within the plain meaning of ‘modified risk tobacco product,’ which the Tobacco Act defines as any tobacco product ‘sold or distributed for use to reduce harm or the risk of tobacco-related disease associated with commercially marketed tobacco products.’ ld. §387k((1). To treat as a drug any tobacco product that merely claims to be a healthier alternative would effectively nullify the provisions relating to modified risk tobacco products, which represent Congress's implicit acknowledgment that those products were outside of FDA's jurisdiction prior to the Tobacco Act.

In sum, absent substantial evidence of the manufacturer's objective intent that its electronic cigarettes affect the structure or function of the body in a way distinguishable from ‘customarily marketed’ tobacco products or that its electronic cigarettes have the therapeutic purpose of treating nicotine withdrawal, there is no basis for FDA to treat electronic cigarettes, as they are marketed by the plaintiffs in this case, as a drug-device combination when all they purport to do is offer consumers the same recreational effects as a regular cigarette. Thus, the plaintiffs are substantially likely to succeed on their claim that FDA cannot regulate and thereby exclude their electronic cigarettes from the United States on the basis that those products are an unapproved drug-device combination under the FDCA. http://www.casaa.org/files/SE-vs-FDA-Opinion.pdf, at 25-26.

To the FDA’s claims that electronic cigarettes constituted a danger to public health, much as A1468's purported but grossly inaccurate justification would have Assembly members believe, Judge Leon responded:

While FDA's interest in protecting public health and safety is, in the abstract, paramount to plaintiffs' purely economic interests, given the particular facts and circumstances of this case, I am not convinced that the threat to the public interest in general or to third parties in particular is as great as FDA suggests. Together, both Smoking Everywhere and NJOY have already sold hundreds of thousands of electronic cigarettes, yet FDA cites no evidence that those electronic cigarettes have endangered anyone. Nor has FDA cited any evidence that electronic cigarettes are any more an immediate threat to public health and safety than traditional cigarettes, which are readily available to the public. Furthermore, now that FDA has regulatory power over electronic cigarettes through the Tobacco Act, any harm to the public interest or to third parties caused by an injunction that merely forbids FDA from regulating electronic cigarettes as a drug-device combination is greatly diminished. Id, at 30-31.

The FDA appealed Judge Leon's ruling, and on December 7, 2010 the DC District Court of Appeals affirmed. http://www.casaa.org/files/ct%20app%...injunction.pdf

Thus, New York would set itself up for immense challenge and litigation by passage of Section 2 of A1468, and its stubborn insistence that electronic cigarettes be deemed something they are not. E-cigarettes are not a "smoking cessation" or other product with "medical purposes".

In sum, we implore you to oppose and/or quickly amend this baseless and inhumane legislation that protects combustible cigarettes and threatens the present and future health of thousands of New York ex-smokers and smokers alike. It makes utterly no sense to leave a deadly product like cigarettes on the market, while banning a much safer alternative. Thank you for your attention and consideration.

Very truly yours,

(Signed by myself and five other CASAA board members)

Enc:

Letter from Dr. Michael Siegel, dated January 23, 2011

CASAA Position Statement on Electronic Cigarettes

[Uma]

A lot of thought and work is going on in the thread. I hope you get a chance to read the entire thread.

[juliery]

Excuse my laziness, but are these different people than the original letters were emailed to last weekend? Or the same? I have no problem writing the same people, just wondering so I can compose accordingly.

[Uma]

Different. We are now contacting the Senate where the NYC idiots sent it to.

In sum, we implore you to oppose and/or quickly amend this baseless and inhumane legislation

There are also some new ideas. The ecf thread is worth the read, in order to try to prevent senseless banning of our rights.

[Uma]

Yay! The hard work is being well recieved so far. Take a look at post #23 for instance.

copy/pasted for the cause:

From: Assemblyman Steve McLaughlin [mailto:mclaugs@assembly.state.ny.us]

Sent: Friday, January 28, 2011 11:50 AM

To: (omitted for privacy)

Subject: A message from Assemblyman Steve McLaughlin

Dear (omitted for privacy)

Thank you for expressing your concerns regarding a potential ban on

electronic cigarettes.

This past week, the U.S. Court of Appeals for the District of Columbia

Circuit rejected the FDA's request to have the entire court review the

December decision by a three-judge panel which ruled that the FDA does

not have the authority to regulate electronic cigarettes as a

drug-device. I agree that there is no need for legislative action on

this matter. New York has many more important issues, including state

budget cuts and a property tax cap, which are my legislative priority.

There is already far too much government interference in our daily

lives. I am committed to ensuring that every citizen has the right to

make their own decisions without unnecessary government regulation.

This proposal is a complete overreach of government and needs to be stopped.

Please be assured that I understand your concerns and will work with my

colleagues to protect your rights. If I can answer any additional

question or be of further assistance, please do not hesitate to contact

my office.

Sincerely,

Steven F. McLaughlin

Member of Assembly

108th District

[Jeffb]

I like this McLaughlin guy