Update On Fda Court Case

[Christopher]

FDA has asked for a rehearing and rehearing en banc and also filed a motion asking that the stay be reinstated pending a rehearing. (Stay meaning permission to again, continue seizing product at the border)

This will now most likely go to the Supreme Court if they accept the case.

One thing interesting to note is this from a member "Legal One" on ECF. He has been involved in the FDA case and wrote the following:

Legal One

FDA appeal

The FDA was dealt a serious blow to its authority and it is acting in desperation to try and save a few careers. Tactically they played into a huge trap and now they are stuck. By classifying this as a tobacco product and arguing along the Brown and Williamson case line we put FDA into a very difficult position legally. I expected that they would not try and agree that this is a tobacco product but would rather fight to the end that it is a drug/device which would walk them into the same logic path in Brown and Williamson. Brown and Williamson really does not make sense if you really dig into the logic but it is the law. If a burning cigarette is not a drug/device that delivers nicotine neither can a battery powered one be a drug/device - changing the mode of action from combustion to electronic thermal gradient increase to get nicotine out of a tobacco product doesn't change the ultimate nature of the "device". Now that the e-cigarette is effectively linked to conventional cigarettes the only real way to undo this is to re-write Brown and Williamson which will impact the tobacco industry - not likely. Filing for re-hearing and taking as many cuts at the apple as possible gives FDA political cover and that is what the bureaucrats seek right now. Enjoy the moment and the fact that the more attention and debate this gets the more difficult it is to deny the simple truth that in the end, an electronic cigarette is a less harmful way to "enjoy" the primary desired component of tobacco - nicotine. Once you get the argument to the real issue - whether humans can use nicotine as a recreational product - you will have many allies in the tobacco industry.

FDA ct. app. motion reinstate stay pending rehearing.pdf

FDA petition Ct. App. rehearing and rehearing en banc.pdf

FDA ct. app. motion reinstate stay pending rehearing.pdf

FDA petition Ct. App. rehearing and rehearing en banc.pdf

[bzeisman]

so what does all this mean?..............in english?

[Christopher]

Basically, the FDA is appealing the case, again. If the court accepts their appeal, we'll be back to square one all over again but this time in the Supreme Court. The Supreme Court will have to accept the case first though.

If the "stay" is approved, it means that FDA will be granted the authority again to seize electronic cigarette shipments at the border.

[miatafrank]

so what does all this mean?..............in english?

I think that what it means is that the FDA has stuck their necks out quite far on behalf of taxes and big pharma that some jobs hang in the balance. their efforts at this point is a stay of their own executions, and that big tobacco is likely to take our side.

At least that's what I take from it.

[mmseng]

And what if the Supreme Court accepts the case and the FDA loses? Are ecigs free from confiscation for good? Does it have any immediate impact on sales? Or is that all to come later?

Also, is there any possibility that the FDA would have to release or reimburse already-confiscated goods?

Edited December 21, 2010 by mmseng

[Jeffb]

Maybe the FDA is trying to bleed NJOY of money until they cant afford to fight any longer.

[Christopher]

I think that what it means is that the FDA has stuck their necks out quite far on behalf of taxes and big pharma that some jobs hang in the balance. their efforts at this point is a stay of their own executions, and that big tobacco is likely to take our side.

At least that's what I take from it.

Yup I agree. I mean studies are already starting to show that e cigarettes are a safer alternative. LEGALLY we can actually almost say that. The recent study done showed e cigs to be 1,000 times safer. Yet the FDA STILL WANTS to appeal this case. I mean they REALLY don't want to loose this. 3 time in court all the way to supreme? Give me a break.

And what if the Supreme Court accepts the case and the FDA loses? Are ecigs free from confiscation for good? Does it have any immediate impact on sales? Or is that all to come later?

Also, is there any possibility that the FDA would have to release or reimburse already-confiscated goods?

If the FDA looses again in supreme court. That's it done deal. They will have to regulate under the current tobacco laws. What's more important is how they classify it. Will a new class be created? Will it fall under cigars? Cigarettes? If they end up following the same laws as cigarettes, flavored e liquid would be removed and vendors could not sell online.

For now, it's a waiting. It's going to be a ride, but the evidence is really stacking up against them.

What more worrying is whether or not NJOY can continue with the legal fees. When Smoke Everywhere was involved in the case, the 1 year they where on board cots them over $400,000 in legal fees. They dropped out of the case due to cost. The FDA could be trying to push this solely to put financial pressure on NJOY.

[Christopher]

Maybe the FDA is trying to bleed NJOY of money until they cant afford to fight any longer.

You took the words right out of my mouth

[Mark]

You took the words right out of my mouth

Jeff has a habit of doing that----BAD Jeff!!!

[VapinMama]

Maybe then its good news that the Supreme Court only hears about 60 cases in person per year, and about another 60 on paper. Considering the hot topics being pushed to the SC for the 2011 docket contain violent video games, same sex marriage, immigration reform, health care reform, bullying, religion in schools, etc... ecigs may never make the cut...

[mmseng]

What more worrying is whether or not NJOY can continue with the legal fees. When Smoke Everywhere was involved in the case, the 1 year they where on board cots them over $400,000 in legal fees. They dropped out of the case due to cost. The FDA could be trying to push this solely to put financial pressure on NJOY.

I'm not much on legal stuff, but is there any basis for NJOY somehow making their money back by winning the case? Because otherwise I don't see how anyone would last against the FDA.

[snubber]

Since the FDA isn't really a federal agency I don't believe. I don't see any reason why NJoy couldn't file against the FDA to try and regain it's legal funds. Not to mention the money they lost buy FDA taking their stuff.

So we wait again.

[Christopher]

As far as I'm aware FDA has immunity against a monetary damages lawsuit. (Unbelievable)

[nana]

As far as I'm aware FDA has immunity against a monetary damages lawsuit. (Unbelievable)

That's just not right.

[mmseng]

That's just not right.

I'm assuming that was a reaction and not a correction.

[DerStadtschutz]

... When will this crap end? This just further proves that the government/FDA has absolutely NO interest in our health whatsoever. Oh, and the way I see it, if they take away flavors on the basis that it's being advertised as kids simply because fruity/candy flavors are attractive to kids(obviously they are to adults to, or we wouldn't have them...), then I say they can't make alcohol taste like anything good. The same goes for cigars, and what about energy drinks? If nicotine and caffeine have an almost equal effect on your body, then energy drinks should be considered just as dangerous and therefore not be allowed to have sweet or fruity flavors. What about Cigars and blunt wraps? What about That Tasty Puff crap you can put on your cigarettes to make them taste like fruit or candy? This is a big bunch of hogwash. God, I hate the government...

This just keeps getting more and more asinine each and every day...

Oh, and if these are drug delivery devices, so are a cup of coffee, a can of soda, an energy drink, A CIGARETTE, and a friggin' eggplant.

Edited December 22, 2010 by DerStadtschutz

[Michelle]

It's all about the money. You're right, it does get more and more asinine each day. Sadly, the FDA is a complete joke and they have proven that several times as of late.

[nana]

I'm assuming that was a reaction and not a correction.

Sorry...yes, a reaction.