Wednesday, 26 March 2014

Will the fate of the e-cigarettes be decided in court?

In December last year the New York City council's Health Committee passed a bill that bans the use of e-cigarettes in all places that normal cigarette use is banned (bit.ly/1iJAS9h). E-cigarettes will be included in the Smoke-Free Air Act of 2002, and this will go into effect on the 29th of April, 4 months after the ban was passed. Yesterday, however, e-cigarette advocates led by Citizens Lobbying Against Smoker Harassment (CLASH) filed a lawsuit against the New York City Council, claiming that the ban violates the New York State Constitution (bit.ly/1hnryov). The lawsuit is not based on health claims, but on the advocates says that according to the constitution you cannot edit an existing law to include something that has nothing to do with the existing law. The New York Constitution states: "No private or local bill…shall embrace more than one subject, and that shall be expressed in the title."

The outcome of this will be very interesting, not only because it will decide whether New Yorkers can vape in bars and restaurants, but it also means that a court has to make a decision on whether e-cigarettes and cigarettes are in fact the same subject. But this is not the first time e-cigarette regulations has been discussed in a courtroom. The FDA has been trying to regulate e-cigarettes as drug-delivery devices (together with nicotine patches and gum), but has lost this battle in court: bit.ly/1g1hVuH. The courts ruling was that they could not regulate them as such unless health claims are made, and the court said that the FDA should regulate them as tobacco products. As far as I know, the FDA is expected to propose regulations for this but has still not done this. Why they haven't yet, I don't really know, but they are probably struggling to find any good reason to, as the majority of scientific evidence shows that there is none. The fact that the FDA wanted to regulate e-cigarettes as a pharmaceutical product, I think shows that they really do know that the e-cigarettes are helping people quit smoking and are virtually harmless. And then... what will happen if the New York court decides that e-cigarettes and cigarettes are not the same thing?

Other countries has also tried to regulate e-cigarettes as pharmaceutical products. In France, before the TPD was approved though, a court decided that e-cigarettes are tobacco products (f24.my/NUxNbv), a German court has ordered that e-cigarettes cannot be restricted (bit.ly/1gCz4B1) and in Hungary a court also ruled that e-cigarettes are not pharmaceutical products (bit.ly/1jvmNjU). Earlier I've also written about a court in Sweden that ruled against Swedish customs who wanted to classify e-cigarettes as a pharmaceutical product (bit.ly/NUH7MK). There are probably more examples as well. The courts around the world at least seem to agree that e-cigarettes cannot be regulated as medicines. But are they tobacco products? It'll be very interresting to see what the New York court decides on in that matter.

Here in Europe I also expect that we'll see that e-cigarette regulations will end up in court. French consumer organization Aiduce (www.aiduce.fr) say that the provisions in the TPD "are unjust, incoherent and detrimental to public health", and "As soon as it (the TPD) is transposed into national law, it will be challenged before the Courts" (bit.ly/1f08ACW).

It can look like the fate of vaping and e-cigarettes will be decided in courtrooms around the world. And that, I hope, will be a good thing for vapers and smokers who wants to quit. Most courts, have high evidence requirements. This means that they will look at all the scientific evidence, and the ones that provide the evidence might be dragged into the courtrooms to witness. It will be very hard for the regulators to provide scientific evidence backing up their regulations, and hopefully they will not be able to. And I look forward to see what happens if Aiduce go through with their plan, and the scientific data to support the 20mg/ml limit on nicotine content is examined by a court...

photo credit: SalFalko via photopin cc

24 comments :

  1. Exellent, dear, thank you! Anja M (vaper from Germany)

    ReplyDelete
  2. Great article VG, the only place this can be settled once and for all, is in the courts E-cigs are neither pharmaceutical products or tobacco products and just because nicotine is derived from tobacco, that doesn't make it a smoking gun.
    Its going to take the courts for the prohibitionists to realise and accept its a new product that needs its own classification and proportionate regulations.

    ReplyDelete
  3. I cant understand why this can not be done sooner rather than later, after all the TPD was done on the health grounds of preventative measure just in case there is harm caused, so why wait till it transposes into law before acting.
    Can't the court cases be brought under the same preventative measures to prevent a bad law being enforced which can be proved to have a detrimental effect on the public health, saying we havent done studies for long enough is not the reason to ban something on the off chance it might do harm.

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  4. I love your post! I recall the historic events of 2010 when e-cigarette shipments were seized by the FDA and "tested" for safety. The companies sued the FDA and won. Federal Judge Richard J. Leon ruled “in the public interest”, stating that the FDA has “no authority over electronic cigarettes.” Of course, all the FDA "junk science" e-cig testing performed on those seized samples are still being used today in anti-e-cigarette propaganda.

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