Tennessee Senate Bill 910 - ban on e-cigs or sloppy language?

[kristin]

Kristen, Thanks for all your hard work. I am going to read all the relevant statutes when I get a little spare time. Quick question - I seem to recall, although I could be mistaken, that the State tobacco lawsuits Settlement precluded the States outright Banning tobacco products, am I recalling incorrectly? I do agree that otherwise the States absolutely have the right to ban tobacco products.

I don't know if the states are forbidden by the settlements to ban tobacco. I think it may vary by state. I know a few years ago a western state attempted to ban tobacco - I think cigarettes - and they were actually OPPOSED by the anti tobacco groups! I can't recall just now which state. But I think states can ban the sale of anything they want or can. They'd face a slew of lawsuits if they did, though. Someone else would have to answer that one for certain, though.

 

[sjrily]

Brutus was going to speak to his rep today - hopefully he'll post back here

 

[Vocalek]

Let's parse the language in the proposed amendment. Section 1 reads:

SECTION 1. Tennessee Code Annotated, Section 39-17-1503, is amended by adding the following language as a new, appropriately designated subdivision:
( ) "Electronic cigarette" or "E-cigarette" means a battery-operated device that contains cartridges filled with nicotine, flavor and other chemicals that are turned into vapor which is inhaled by the user;

This would not add "electronic cigarette" to Tennessee's definition of "Tobacco Product" found in 39-17-1503. Part definitions. Source: 2010 Tennessee Code Title 39 - Criminal Offenses Chapter 17 - Offenses Against Public Health, Safety and Welfare Part 15 - Prevention of Youth Access to Tobacco 39-17-1503 - Part definitions. :: Justia Law

(9) “Tobacco product” means any product that contains tobacco and is intended for human consumption, including, but not limited to, cigars, cigarettes and bidis.

"Electronic cigarette" would become the new definition in the list, "(10)".

Section 18 of SB 910 begins:

SECTION 18. Tennessee Code Annotated, Title 39, Chapter 17, Part 1, is amended by adding the following language as a new, appropriately designated section: 39-17-1__.

Notice that all of the previous sections of SB910 were amending the section of the code that deals with sales to youth (Title 39 Chapter 17 Part 15). Section 18 of SB910 amends Title 39 Chapter 17 Part 1, which contains miscellaneous criminal offenses such as "False academic degrees" and "Transportation of Illegal Aliens." 2010 Tennessee Code Title 39 - Criminal Offenses Chapter 17 - Offenses Against Public Health, Safety and Welfare Part 1 - Miscellaneous :: Justia Law

This would become the new 39-17-116 (since 115 is the last entry in the Miscellaneous category) with a title to be determined, probably something like "Sale of products containing nicotine prohibited."

Section 18 of SB 910 continues:

(a) It is an offense to distribute or sell any product or device containing or delivering nicotine intended or expected for human consumption that is not a tobacco product, as defined in § 39-17-1503, unless such product or device has been approved by the United States food and drug administration for sale as a tobacco use cessation or harm reduction product or for other medical purposes and is being marketed and sold solely for that approved purpose.​

This language sets up two exempted categories of products:

• Tobacco Products (defined in item (9) of § 39-17-1503.)
• FDA-approved products

It becomes a criminal offense to sell any other product that is intended for human consumption and delivers nicotine, for example electronic cigarettes with cartridges that contain nicotine or e-liquid that contains nicotine.

Sometime in the future, if an electronic cigarette manufacturer receives approval to market their product as a smoking cessation treatment (regulated under the Food, Drug, and Costmetics Act), that product would be exempted. If in the future, the FDA agrees to regulate electronic cigarettes as a tobacco product, and one brand and model of electronic cigarette is approved for use as "modified risk" or "reduced exposure" product (regulated under the Family Smoking Prevention and Tobacco Control Act), that specific product would be exempted under the "harm reduction" language in the new Tennessee law.

It will take many years before either of these two exemption scenarios come to pass.

 

[sjrily]

Thanks for that, Vocalek! That's exactly how I understand it to be, but ADD obviously interfered with my points and explanations and I apologize to everyone on that.

The real meat of the main question I had (which we can't answer) is if the intent was to treat e-cigs as a tobacco product in 39-17-1503 or not. Bidis has it's own definition, as will e-cigs - the difference, though is that bidis is clarified specifically as a tobacco product, but in the bill, e-cigs aren't. Clarification on that would answer my question.

IF all the other sections weren't being amended to read "tobacco products or electronic cigarettes" I would not have given it a second thought. But the amendments providing regulations on the sale of e-cigs to minors appears to be at odds with an outright ban on all sales, doesn't it?

To me, it doesn't make any legal sense to write law outlining how you can sell an effectively illegal product to minors. Section 18 makes it clear that a nicotine product, that's not a tobacco product, can only be sold if they are FDA-approved cessation/harm reduction products. E-cigs are certainly NOT that .By amending the regulations to include e-cigs it seems they are either currently treating e-cigs as tobacco or they are writing moot statutes.

Regardless, they will have a hard time in court when sued because they slapped a $10,000 fine on someone selling e-cigs in perfect accordance to the regulations stated in the Amended Code.

 

[kristin]

E-cigs are certainly NOT that .By amending the regulations to include e-cigs it seems they are either currently treating e-cigs as tobacco or they are writing moot statutes.

This is pretty standard practice. The laws regulating the sale of the product kick in once a product fits the standard. At this time, no e-cigarettes fit the standards, so the laws pertaining to e-cigarette sales to minors will not apply. Once an e-cigarette gets FDA approval as an NRT or classified as a tobacco product, then those laws kick in. They obviously anticipate that e-cigs will eventually be classified as one or the other.

Additionally, it will covered unapproved NRT e-cigs or unregulated e-cig tobacco products. Remember that not all e-cigs will be approved as NRTs or tobacco products. Approval/regulation of one company's products does not cover ALL e-cigs. So there will be a time when some e-cigs are not in either classification and those will still be covered under Section 18.

As an example, say Njoy gets recognized as a tobacco product and Notcigs goes the other route and gets approved as an NRT. Smoking Everywhere e-cigs still won't automatically be classified as either an NRT or tobacco product - they will have to undergo the process for themselves. This bill would apply sections 1-17 to Noy and Notcigs and Section 18 to Smoking Everywhere.

If the FDA should do a blanket classification and say ALL e-cigs are now considered tobacco products, that would exempt e-cigs from section 18, but not other unapproved or unregulated nicotine products (say if someone comes up with nicotine chips or something.)

 

[Vocalek]

Actually, Kristin, if the FDA declared all e-cigarettes to be tobacco products, this would not make them legal to sell under the TN law, because TN provided a specific definition of "Tobacco Products" in their law:

(9) “Tobacco product” means any product that contains tobacco and is intended for human consumption, including, but not limited to, cigars, cigarettes and bidis.

2010 Tennessee Code Title 39 - Criminal Offenses Chapter 17 - Offenses Against Public Health, Safety and Welfare Part 15 - Prevention of Youth Access to Tobacco 39-17-1503 - Part definitions. :: Justia Law

E-cigarettes do not contain tobacco, so they are not included there. The FSPTCA language includes products that are derived from tobacco, but TN's definition does not include that language. E-cigarettes are to be defined in a new section (10) in 39-17-1503. This is not for the purpose of including them in the definition of Tobacco Products, but rather to provide a reference for all the many places they will be adding "or electronic cigarettes" in back of "tobacco products" in the sections currently dealing with sales to minors. If SECTION 18 is included, this new definition will also be the reference for 39-17-116 (newly created section in 39-17-1 that contains all the text of SECTION 18 of the proposed bill(s)).

Thus the only way an e-cigarette that did not become a new FDA-approved "tobacco cessation" product might be exempted would be if (a) the product was approved as either a "modified risk" or a "reduced exposure" product under FSPTCA, and (b) the Administrative Branch of the TN government decided to interpret the phrase "harm reduction" within 39-17-116 as being the same thing as "modifed risk" or "reduced exposure" under the FSPTCA.

We all know that it may be years (if ever) before FDA sets up the requirements for "modified risk" or a "reduced exposure" products. And even when that does happen, given the current makeup of the Tobacco Control Advisory Committee, the requirements might be structured to be impossible to meet.

SECTION 18 is just a bad idea. It protects nobody and stands to harm every e-cigarette user in TN and every smoker who might someday save his or her health by making the switch.

 

[Brutus Buckeye]

Brutus was going to speak to his rep today - hopefully he'll post back here

Left a message but no return call, will continue to try.

 

[kristin]

Thanks for straightening that out, Elaine!

Actually, Kristin, if the FDA declared all e-cigarettes to be tobacco products, this would not make them legal to sell under the TN law, because TN provided a specific definition of "Tobacco Products" in their law:

2010 Tennessee Code Title 39 - Criminal Offenses Chapter 17 - Offenses Against Public Health, Safety and Welfare Part 15 - Prevention of Youth Access to Tobacco 39-17-1503 - Part definitions. :: Justia Law

E-cigarettes do not contain tobacco, so they are not included there. The FSPTCA language includes products that are derived from tobacco, but TN's definition does not include that language. E-cigarettes are to be defined in a new section (10) in 39-17-1503. This is not for the purpose of including them in the definition of Tobacco Products, but rather to provide a reference for all the many places they will be adding "or electronic cigarettes" in back of "tobacco products" in the sections currently dealing with sales to minors. If SECTION 18 is included, this new definition will also be the reference for 39-17-116 (newly created section in 39-17-1 that contains all the text of SECTION 18 of the proposed bill(s)).

Thus the only way an e-cigarette that did not become a new FDA-approved "tobacco cessation" product might be exempted would be if (a) the product was approved as either a "modified risk" or a "reduced exposure" product under FSPTCA, and (b) the Administrative Branch of the TN government decided to interpret the phrase "harm reduction" within 39-17-116 as being the same thing as "modifed risk" or "reduced exposure" under the FSPTCA.

We all know that it may be years (if ever) before FDA sets up the requirements for "modified risk" or a "reduced exposure" products. And even when that does happen, given the current makeup of the Tobacco Control Advisory Committee, the requirements might be structured to be impossible to meet.

SECTION 18 is just a bad idea. It protects nobody and stands to harm every e-cigarette user in TN and every smoker who might someday save his or her health by making the switch.

 

[sjrily]

If this is truly the way they intended this bill to be, then it’s an epic fail on a magnitude of levels and legalities. The Act will be effective on July 1, 2011. Since it’s not otherwise stated, all items go in force on that date – including sales to minors amendments - and all are considered “a continuation of existing law.” The code can’t, by it’s definition, allow for maybe someday to compete with existing, current law, and it’s clearly stated that in the event of conflict - clarity and precision of subject matter will trump conflicting ambiguity elsewhere. Minor regulations are clear, offending actions are not. I can’t say what the authors really want to happen, but statutory interpretation would definitely be on the side of e-cig merchants following amended statutes in 39-17-1503.

But forgetting all the legal jargon –back to why I brought all this up in the first place - Just for arguments’ sake – let’s suppose that the bill is intended as the Legislative Report claims:

Prohibits the sale of electronic cigarettes to minors. Prohibits distribution and sale of non-FDA approved nicotine delivery products or devices as tobacco use cessation products. Creates Class B misdemeanor for violations and authorizes the court to impose a civil penalty of no more than $10,000 for each violation.
http://www.state.tn.us/tccy/legislat.pdf

Hypothetically, should it still be handled the same way with the same type of petition as a bill outright banning all sales? Even if all the petitions calling to squash the entire bill (which is not CASSA’s position), result in revised language - does the end always justify the means or could it backfire at some point. This was more of a thought question.

 

[Vocalek]

Nothing in the Legislative Report is untrue. However the wording is a clever use of misdirection. Only the first sentence specifies minors, and the authors hope that the reader will assume that the word "minor" applies to all the rest of the sentences. It is very like the tactic used by a magician to draw the attention of the audience to some other spot, away from where the action is really taking place.

If the intent were to outlaw sales to minors only, then the first two sentences could be combined into one: "Prohibits the sale of electronic cigarettes or non-FDA approved nicotine delivery products or devices to minors." If the intent were to outlaw sales to minors only, then the proposed amendments to Part 15 get the job done, without the need to create a new criminal act in Part 1. 2010 Tennessee Code Title 39 - Criminal Offenses Chapter 17 - Offenses Against Public Health, Safety and Welfare Part 15 - Prevention of Youth Access to Tobacco :: Justia Law

I'm not sure what you mean by "petition." Are you using the term to cover any situation where one or more citizens contact legislators to ask for a change in the law, or are you talking about a document signed by hundreds of people?

CASAA's position is that we support banning sales to those under the age for legal use of tobacco in their jurisdiction. We adamantly oppose bans on sales to adults.

In contrast, organizations such as the American Cancer Society, American Lung Association, American Heart Association, and Campaign for Tobacco-free Kids are opposed to laws that would ban sales to youth. The policy of those organizations is that the ban must outlaw sales to everyone, or they will not support it.

 

[sjrily]

I’m in complete agreement with CASSA’s position. All I’ve been trying to say is that IF they were considering e-cigs as tobacco products (as it “appears” they are in Chapter 15) AND they were to add to the section 1 definition “for purposes of this chapter…e-cigs are tobacco products” – like the definition of bidis states - THEN Chapter 17 – no matter how stupidly stated it is - would not apply to e-cig because e-cigs would be clearly defined in 1503 AS a tobacco product (for which benefit claims CAN NOT be made).

I guess there’s really no sense arguing what section 18 might mean, how it can be interpreted or what it should say at this point because it’s very poor language and the above would be the first step anyway. Again I don’t KNOW any of this to be the case, as I have no idea what their internal thoughts are. IF intent was regulate sales to minors AND stop merchants/manufactures from making health/benefit claims on non FDA-approved “drugs,” as the summary states, I’m ok with that –BUT it needs to be clarified – I never disputed that.

I’m ok with forbidding claims at this point not because I’m a Vaper Traitor, but because I’m well aware of what that can do to an industry. I started working with aromatherapy and natural products back when hippy wasn’t near as hip as it is now, and FDA/Pharma have been trying to gain control for most of that time. They really started pushing back as people began turning from Prozac to St John’s Wart. Not a year goes by that "they" don’t try to pass something sleazy under the radar or tamper with FDCA or DSHEA and we all push back every time they do. We have “not-FDA approved” disclaimers on everything. We all know what the products do, but we don’t dare publicly claim anything – if we do the FDA steps in, takes over and we lose our products to Big Pharma.

None of us want the FDA getting their hands on e-cigs as a drug, cessation aid or anything other than a tobacco product at this point. The industry can't handle it right now and e-cigs as we know them will be off the market pending FDA's infinite corporate wisdom. If the forbiiden benifit claims keep going the argument for regulating e-cigs as tobacco will weaken, opponents with be screaming "foul," and the industry might start to seem incorrigible. Does this political chess game undermine public health? Absolutely. That sucks, but we know that what it is and that's all we have to work with.

 

[grimulus]

I've emailed the TN congress in hopes that they will get the message. I did get one reply back, which was nice. Hopefully this isn't a bill people are truly considering, but more like one politician trying to get his way...we can only hope.

If it passes, I guess I'll make some friends in surrounding states and go pick up my juice from them. I'm not sure what else to do...such a hard thing to think about!

 

[crashinbrn]

Thank you for contacting our office. Your input is important to us and
we appreciate your comments.

This is indeed an important issue. I will keep this in mind when
deciding how to vote on this and please let me know in the future if you
have a concern or if I can assist you in any way.

Very Best Regards,
Representative Dale Ford
Tennessee General Assembly
202A War Memorial Building
Nashville, TN 37243
(615) 741-1717

i received this surprise after i sent mine.

 

[Vocalek]

A copy of CASAA's letter (sent by email on Monday, and also by U.S. mail) is posted in the CASAA web site News section.

CASAA.org

 

[grimulus]

Glad they sent that. If there are bans, black markets will arise, for sure

Sent from my Droid using Tapatalk

 

[sjrily]

A copy of CASAA's letter (sent by email on Monday, and also by U.S. mail) is posted in the CASAA web site News section.

CASAA.org

Awesome letter. Hopefully it will get more than the canned "no commet" response crashinbrn got. Do you expect it will?