Amazon.com Dropping E-Cigarette Sales Action Follows Notice of Potential Legal Liability

The Internet retailer Amazon.com is reportedly moving to stop selling or supporting the sale of e-cigarettes on its huge website. Its action follows receipt of a notice of potential legal liability for facilitating the sale of a product the Food and Drug Administration [FDA] has declared is "illegal."

The FDA also reported that it found deadly toxins and cancer-causing chemicals in the "smoke" produced by e-cigarettes and inhaled by users; an announcement which came as NBC TV Nightly News was about to blow the lid off the agency's refusal to take action, a news report which was to feature public interest law professor John Banzhaf of Action on
Smoking and Health (ASH) and his legal actions aimed at compelling the agency to finally act. www.pr-inside.com/fda-finds-deadly-chemicals-in-e-cigarette-r140 ..

Previously, after receiving a notice of potential legal liability from ASH, PayPal took a similar step, and Facebook has also reportedly banned promotions for e-cigarettes. In other venues, e-cigarettes have already been banned in Australia, Brazil, Canada, Israel, Mexico, and virtually in Oregon, restricted in Finland, Malaysia, and Singapore, threatened with legal action in Connecticut, and are the subject of a major class action law suit.

Now, reports public interest law professor John Banzhaf, they seem about to be banned in California, a move which could be followed in Kentucky and then in other states; more cigarette wholesalers are finding it necessary to provide product liability insurance; and a federal court is about to issue a ruling which could uphold banning the import of e-cigarettes into the country.

Amazon.com has reportedly begin sending the following message to merchants. "We are writing because it has come to our attention that you have listed a product that we have determined is inappropriate for Amazon.com. We have prohibited the sale of electronic cigarettes, electronic cigars, electronic pipes, nicotine nebulizers, refill material for any of these, and similar products on our site. A list of ASINs removed from our catalog may be found at the end of this message. Amazon.com reserves the right to remove any listing we determine to be illegal or inappropriate for our site. For more information, please see the Restricted Products section of our Help pages. To avoid the blocking of your selling account, please do not relist this product or any other prohibited content on our site."

Amazon's action was taken after receiving a notice of potential liability from Action on Smoking and Health (ASH), a national antismoking organization, which earlier filed a legal petition urging the FDA to take action against the products until they were approved for sale by the agency. ASH also sent a very similar warning letter by Certified Mail Receipt Requested to PayPal before that organization likewise cracked down on e-cigarette sales.

E-cigarettes present potential risks to users, to young people who might use them like candy cigarettes, and to others -- including infants, the elderly, and those with various medical conditions -- who might be in the immediate vicinity when e-cigarette users exhale a mixture of propylene glycol (which is used in antifreeze, and may cause respiratory tract infections) and nicotine (a deadly and highly addictive drug). There may even be more deadly ingredients in the exhalation.

The FDA’s Division of Pharmaceutical Analysis analyzed the ingredients in a small sample of cartridges from two leading brands of electronic cigarettes. In one sample, the FDA’s analysis detected diethylene glycol, a chemical used in antifreeze that is toxic to humans, and in several other samples, the FDA analysis detected known carcinogens, including nitrosamines. These tests indicate that these products contained detectable levels of known carcinogens and toxic chemicals to which users could potentially be exposed.

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law at GWU, and
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
America's First Antismoking Organization
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310 // ash.org

Contact Information:
Action on Smoking and Health (ASH)
America's First Antismoking Organization

2013 H Street, NW
Washington, DC 20006, USA

Contact Person:
Public Interest Law Professor John Banzhaf
Executive Director
Phone: (202) 659-4310
email: email

Web: ash.org

Attorneys General Asked to Ban All E-Cigarette Sales Success in Oregon Could Serve as Model/Precedent, Says ASH

Attorneys general in 49 states are being petitioned to ban the further sale of e-cigarettes until their safety can be determined by the Food and Drug Administration [FDA].

They are being petitioned to follow the lead of the Oregon Attorney General's office - which has just obtained such court orders - by Action on Smoking and Health (ASH), the group whose legal petition, and scheduled appearance on NBC-TV Nightly News, precipitated last week's FDA warning about some of the dangers of e-cigarettes.

SEE: www.pr-inside.com/fda-to-regulate-e-cigarettes-as-toxins-r140360 .. AND ash.org/ecigpetition

The Oregon Department of
Justice filed late Thursday two legal settlements that prevent two national travel store chains from selling "electronic cigarettes" in Oregon. The action is the first of its kind in the country, and prevents Oregonians from buying potentially dangerous products that the FDA has yet to review or approve.
SEE: www.doj.state.or.us/releases/2009/rel073009.shtml

ASH, which in the past successfully urged state attorney generals to crack down on the illegal sale of cigarettes over the Internet, and to take action against the use of cartoon characters in cigarette ads, is providing the attorneys general with background information about the known dangers of e-cigarettes, information about the successful legal action in Oregon, and information about many of the potential dangers of e-cigarettes not included in last week's FDA report.

These potential dangers include possible contamination, smokers who otherwise would quit remaining addicted to nicotine, the high risk nicotine poses for people with risk factors for heart attacks, the propensity of inhaled nicotine to sustain or even trigger an addiction, etc.

SEE: www.pr-inside.com/fda-ignores-major-dangers-of-e-cigarettes-r140 ..

ASH reminds the attorneys generals that all other nicotine administration products - including nicotine gum, nicotine patches, nicotine inhalers, and nicotine sprays - could only be sold after approval by the FDA. All must bear appropriate health warnings, and some are available only with a doctor's prescription.

"Favor," a cigarette-like product similar to e-cigarettes, which likewise released nicotine but used a different method, was banned from the market by the FDA after the agency received a legal complaint from ASH. Nicotine lollipops have likewise been banned.

“Until the FDA acts, it is appropriate for attorneys general to act to protect their health of their citizens. The Oregon Attorney General has provided a roadmap and a precedent for others to follow, and ASH petitions them to do so without delay,” says public interest law professor John Banzhaf, Executive Director and Chief Counsel of ASH.

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law and Executive Director
Action on Smoking and Health (ASH)
2013 H Street, NW, Washington, DC 20006, USA
(202) 659-4310 // (703) 527-8418 // ash.org/

Contact Information:
Action on Smoking and Health (ASH)
America's First Antismoking Organization

2013 H St., NW
Washington, DC 20006

Contact Person:
Law Professor John Banzhaf
Executive Director and Chief Counsel
Phone: (202) 659-4310 // (703) 527-8418
email: email

Web: ash.org

CA Banning E-Cigarettes Too Federal Court Ruling Due Soon

E-cigarettes have already been banned in Australia, Brazil, Canada, Israel, Mexico, and virtually in Oregon, restricted in Finland, Malaysia, and Singapore, threatened with legal action in Connecticut, and the subject of a major class action law suit. Now, reports public interest law professor John Banzhaf, they seem about to be banned in California, a move which could be followed in Kentucky and then in other states.

In related developments, e-cigarettes have been declared illegal by the FDA, the imports are being seized, and sellers might face criminal penalties; PayPal has stopped facilitating their sale; Facebook has reportedly dropped their ads; and at least one county has banned their use wherever conventional smoking is prohibited.

Also, more e-cigarette wholesalers are finding it necessary to provide product liability insurance
to their retail customers, and at least one insurance company is offering its own policies. The company explains the need for such insurance this way: "This device has not been approved by the FDA as a 'stop smoking aid' product. In fact, the FDA has issued a warning about the product (e-cigarettes) because marketers are presenting the e-cigarette as a healthier alternative to regular cigarettes. In addition, the cartridge contains several chemicals including nicotine that are hazardous to your health."

Banzhaf, who won a law suit which helped establish the FDA's jurisdiction over nicotine products, who filed a legal petition with the FDA demanding that they take action concerning electronic cigarettes, and whose warnings to PayPay led it to drop its e-cigarette accounts, notes that a federal court decision in a crucial e-cigarette law suit may be imminent.

The FDA and others have noted that e-cigarettes pose a wide variety of potential dangers to users, and perhaps also to those around them, both of whom inhale a mixture of nicotine (a dangerous and addictive drug) and propylene glycol (which is used in antifreeze, and may cause respiratory tract irritation).

In addition to nicotine and propylene glycol, the FDA recently reported that it found in samples of e-cigarettes a variety of "toxic and carcinogenic chemicals"
including diethylene glycol, "an ingredient used in antifreeze, [which] is toxic to humans"; "certain tobacco-specific nitrosamines which are human carcinogens"; and that "tobacco-specific impurities suspected of being harmful to humans - anabasine, myosmine, and ?-nicotyrine - were detected in a majority of the samples tested."

Meanwhile, law professor Banzhaf says, he will continue to work with several attorneys general to encourage and assist them to take action against the sale of e-cigarettes until they are approved for sale by the FDA, as the attorneys general in Oregon and Connecticut are already doing.

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
FELLOW, World Technology Network
2013 H Street, NW, Washington, DC 20006, USA
(202) 659-4312 // banzhaf.net //

Contact Information:
George Washington University Law School

2013 H St., NW
Washington, DC 20006

Contact Person:
John Banzhaf
Professor of Public Interest Law
Phone: (202) 659-4312
email: email

Web: banzhaf.net

Court Hearing on E-Cigarettes [8/17] Ruling Could Determine Fate of Controversial Nicotine Product

A court hearing scheduled for Monday could help determine whether e-cigarettes containing nicotine can continue to be imported (and ultimately sold) without any restrictions or required warnings, or if they are subject to the jurisdiction of the Food and Drug Administration [FDA] - like nicotine gum, nicotine patches, nicotine spray, nicotine inhalers, and even nicotine lollipops - and therefore must prove that they are safe and effective before they can be lawfully sold.

"At stake is whether e-cigarettes can continue to use customers as guinea pigs to determine whether inhaling a mixture of nicotine (a dangerous drug) and propylene glycol (which is used in antifreeze, and may cause respiratory tract irritation) is safe, and whether they can continue to add Cialis and other prescription-only drugs to the mix," says Action on Smoking and
Health (ASH), the organization which filed a legal petition demanding that the FDA begin regulating e-cigarettes.

The FDA has now determined that e-cigarettes are a "misbrand[ed]" product, an "unapproved new drug" and "are illegal until they are cleared." The agency has blocked the import of shipments, an order which is under attack in the court proceeding. In the meantime, the sale of e-cigarettes has been prohibited by court order in at least one state, e-cigarette advertising has reportedly been banned on Facebook, and several bills aimed at the product are being considered.

Recently ASH wrote to PayPal, advising the company that providing payment for e-cigarettes "appears to be aiding and abetting the sale of these illegal products by providing payment vehicles to Internet sites which are selling them, and doing so in interstate commerce and in possible violation of consumer protection laws in the individual states." PayPal subsequently announced that "we have decided not to allow the sale of electronic cigarettes."

In a news conference called in response to a scheduled appearance by ASH Executive Director John Banzhaf on NBC-TV's Nightly News program, the FDA warned the public and announced that it has discovered in e-cigarettes toxic and carcinogenic chemicals including diethylene glycol, "an ingredient used in antifreeze, [which] is toxic to humans"; "certain tobacco-specific nitrosamines which are human carcinogens"; and that "tobacco-specific impurities suspected of being harmful to humans - anabasine, myosmine, and beta-nicotyrine - were detected in a majority of the samples tested."

Public interest law professor John Banzhaf, Chief Counsel of ASH, has filed a brief amicus curiae, arguing that the FDA does have jurisdiction over e-cigarettes and describing many of the problems which could occur if the products could be sold without any restrictions or warnings. These include:

* Since at least one company is already adding Cialis to its e-cigarettes, "it would seem that the manufacturers or sellers would be free to add to e-cigarettes whatever other drugs (such as Cialis, Viagra, Levitra, mood-elevating or other anti-depression medications, etc.) they wished, provided only that the e-cigarettes also contained and dispensed some amount of nicotine derived from tobacco. This is true because no other agency would have jurisdiction to regulate them."

* A new report says that e-cigarettes contain an amount of nicotine which could be lethal to young children, especially since, as the FDA has suggested: "It was stated that parents may want to tell their children and teenagers that these products are not safe to use. Of particular concern to parents is that e-cigarettes are sold without any legal age restrictions, and are available in different flavors (such as chocolate, strawberry and mint) which may appeal to young people. In addition, the devices do not contain any health warnings comparable to FDA-approved nicotine replacement products or conventional cigarettes."

* The FDA has said it "is concerned that electronic cigarettes, cigars, or pipes may introduce young people to nicotine use which may lead to an increase in the use of conventional tobacco products with well-known, adverse, health consequences. Additionally, it is unclear what health effects these products could have on users or if misuse or product failure could lead to nicotine poisoning or other serious adverse health consequences."

* The FDA has rejected claims that these "devices are safer than smoking real cigarettes" or that the product help people stop smoking tobacco "because these devices can deliver doses of synthetic nicotine, and the agency sees them as unapproved drug-delivery devices with unknown safety. It has also not been proven whether these devices can safely help people quit smoking, while they have the clear potential to entice new smokers with their candy and fruit flavors offered."

A COPY OF ASH's BRIEF, AND MORE INFORMATION ABOUT THE PROCEEDINGS, ARE AVAILABLE TO THE PRESS.

EVENT: Oral argument concerning request by e-cigarette companies for the court to prevent the FDA from blocking imports into the country.

WHERE: Courtroom of U.S. District Judge Richard J. Leon, 3rd Street & Constitution Ave, NW, Washington, DC

WHEN: 3:00 PM on Monday, August 17, 2009

FOR MORE INFORMATION, CONTACT:

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law and Executive Director
Action on Smoking and Health (ASH)
America's First Antismoking Organization
2013 H Street, NW, Washington, DC 20006, USA
(202) 659-4310 // (703) 527-8418 // ash.org

Contact Information:
Action on Smoking and Health (ASH)
America's First Antismoking Organization

2013 H St., NW
Washington, DC 20006

Contact Person:
Public Interest Law Professor John Banzhaf
Executive Director and Chief Counsel
Phone: (202) 659-4310 // (703) 527-8418
email: email

Web: ash.org

Key E-Cigarette Judicial Ruling Expected Shortly But It Would Not Affect Class Action Law Suits, Says Lawyer

ASH released this press release:

A key judicial ruling in a law suit involving e-cigarettes, and being watched very anxiously by both sellers and users, is expected shortly, says public interest law professor John Banzhaf, who has filed several legal briefs in the legal proceeding. However, even if the judge were to rule in favor of the e-cigarette sellers, it would not affect a class action law suit now pending against one manufacturer, and others which are likely to be filed shortly, predicts Banzhaf.

The law suit, brought by several e-cigarette sellers, seeks a preliminary injunction to restrict the power of the Food and Drug Administration [FDA] to inhibit the importation of e-cigarettes manufactured abroad.

The suit argues that the FDA had no jurisdiction over e-cigarettes, at the time of the import restrictions, because they (like cigarettes) were "tobacco products," even though e-cigarettes contain
no tobacco, and all other non-tobacco nicotine-administration products -- including gums, patches, inhalers, sprays, another type of imitation cigarette, and even nicotine water -- have all been subject to the FDA's jurisdiction.

But since the newly-enacted Family Smoking Prevention and Tobacco Control Act expanded the FDA's jurisdiction to also encompass all tobacco products (including cigarettes), a preliminary injunction based upon the law before the new act went into effect would probably provide no protection for e-cigarettes now, says Prof. Banzhaf, Executive Director of Action on Smoking and Health (ASH).

Moreover, any ruling related to the FDA's jurisdiction would have virtually no impact on a class action law suit now pending against a major e-cigarette seller, and others similar class action law suits likely to be filed shortly. The law suit contends that the defendant violated a consumer protection statute by engaging in "unlawful, unfair or fraudulent acts or practices" and engaged in "unfair, deceptive, untrue or misleading advertising."

Although the argument that the ads were unfair is based in part on scientific findings of the FDA, even a judicial ruling that the FDA at the time had no authority to regulate the product doesn't invalidate the agency's scientific findings about it, argues Banzhaf.

The FDA has reported that e-cigarettes contained detectable levels of known carcinogens and toxic chemicals to which users could potentially be exposed.

The FDA said the toxic chemicals included diethylene glycol, “an ingredient used in antifreeze, [which] is toxic to humans”; “certain tobacco-specific nitrosamines which are human carcinogens”; and that “tobacco-specific impurities suspected of being harmful to humans – anabasine, myosmine, and ?-nicotyrine – were detected in a majority of the samples tested.”

Banzhaf notes that virtually anyone who bought one or more e-cigarettes, based upon claims that they did not contain any of the cancer-causing chemicals found in tobacco cigarettes, would be able to bring a similar class action law suit in his state against the seller.

Virtually all states have consumer protection statutes which permit law suits to be brought even if the user suffered no medical harm from using the product.

The plaintiffs and the attorneys who are the first to file class action product liability law suits often end up with the lion's share of money recovered -- including attorney's fees -- so a race to the court house to be the first to file in each state is quite possible, says Prof. Banzhaf.

This is especially true since the legal complaint on file in the initial class action law suit provides a template which any other competent attorney could use to draft his own filing, Banzhaf suggests.

Perhaps that's one reason why more e-cigarette wholesalers are finding it necessary to provide product liability insurance to their retail customers, and at least one insurance company is offering its own liability policies.

That company explains the need for such insurance this way: "the FDA has issued a warning about the product (e-cigarettes) because marketers are presenting the e-cigarette as a healthier alternative to regular cigarettes. In addition, the cartridge contains several chemicals including nicotine that are hazardous to your health."

Also, ASH's legal notices about the potential liability of facilitating the sale of a product the FDA has determined is "illegal" have caused both PayPal and Amazon.com to disassociate their companies from these products.

E-cigarettes have already been banned in Australia, Brazil, Canada, Israel, Mexico, and virtually in Oregon, restricted in Finland, Malaysia, and Singapore, and threatened with legal action in Connecticut.

PROFESSOR JOHN F. BANZHAF III
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
America's First Antismoking Organization
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310 ** ash.org

PayPal Warned About E-Cigarette Legal Liability Facebook Bans Ads; Now Cialis is in E-Cigarettes

PayPal has been warned about the legal consequences of continuing to facilitate the sale of e-cigarettes -- a product the FDA has ruled is "misbrand[ed]," an "unapproved new drug" and "are illegal until they are cleared," and whose sale has been prohibited by court order in at least one state. The legal warning comes as e-cigarette advertising has reportedly been banned on Facebook, and e-cigarettes which deliver Cialis as well as nicotine are now available.

PayPal was advised that providing payment for e-cigarettes "appears to be aiding and abetting the sale of these illegal products by providing payment vehicles to Internet sites which are selling them, and doing so in interstate commerce and in possible violation of consumer protection laws in the individual states."

PayPal was also warned that: "As the FDA and others have noted,
e-cigarettes pose a wide variety of potential dangers to users, and perhaps also to those around them, both of whom inhale a mixture of nicotine (a dangerous drug) and propylene glycol (which is used in antifreeze, and may cause respiratory tract irritation).

Thus, in addition to possible legal liability for simply facilitating the sale of an illegal product, PayPal might well be named as a defendant should an e-cigarette user or a family member claim that some medical problem was caused or exacerbated by an e-cigarette illegally sold with PayPal’s assistance."

It appears that other business entities involved, even indirectly, with the sale of this unapproved new product are taking steps to limit their potential legal liability. Two corporations in Colorado, faced with potential charges of violating consumer protection laws, have agreed to no longer sell the "illegal" products.
www.pr-inside.com/e-cigarette-sales-banned-by-court-order-r14184 .. AND reason.com/blog/show/135190.html

Facebook has reportedly decided that "we do not allow ads for electronic cigarettes and will not allow the creation of any further Facebook Ads for this product." www.e-cigarette-forum.com/forum/e-cigarette-news/31154-facebook- ..

Meanwhile, it also appears that at least one distributor is providing e-cigarettes designed to deliver Cialis, with or without an added nicotine kick, and apparently without the need for a prescription. www.e-cig.com/shopping/shopexd.asp?id=608

"This illustrates just one additional potential danger of permitting businesses to decide for themselves to offer drug-delivery devices to the public without any FDA review or approval," says public interest law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH), America's first antismoking organization. He warns that a sale-first approval-later policy allows drug sellers to use the public as guinea pigs to test the safety of the products.

Banzhaf also notes that other nicotine-delivery products -- including nicotine gum, nicotine patches, nicotine sprays, and nicotine inhalers -- all had to obtain FDA approval before they were permitted on the market. Other nicotine-delivery products which could not prove that they were safe -- including a cigarette look-alike product named "Favor," as well as nicotine lollipops -- are not permitted to be sold.

Banzhaf's scheduled appearance on NBC-TV Nightly News was a major factor in prompting the FDA to report that e-cigarettes contained detectable levels of known carcinogens and toxic chemicals to which users could potentially be exposed.
SEE: www.pr-inside.com/fda-ignores-major-dangers-of-e-cigarettes-r140 ..

The FDA said the toxic chemicals included diethylene glycol, "an ingredient used in antifreeze, [which] is toxic to humans"; "certain tobacco-specific nitrosamines which are human carcinogens"; and that "tobacco-specific impurities suspected of being harmful to humans - anabasine, myosmine, and ?-nicotyrine - were detected in a majority of the samples tested." www.pr-inside.com/fda-to-regulate-e-cigarettes-as-toxins-r140360 .. AND www.fda.gov/NewsEvents/PublicHealthFocus/ucm173146.htm

In addition to these known dangers, there are many other potential dangers which have not yet been evaluated by the FDA, and which may be even more serious. These include possible contamination, smokers who otherwise would quit instead remaining addicted to nicotine, the deadly danger nicotine inhalation can pose for people with risk factors for heart attacks, the propensity of inhaled nicotine to sustain or even trigger an addiction, the worry that youngsters will use e-cigarettes as "training wheels" on the way towards cigarette smoking, and the potential risks to those around e-cigarette users -- including infants and young children, the elderly, those with existing medical problems, etc. -- who will be exposed to the exhaled vapors containing nicotine and propylene glycol.

ASH, which served the legal notice on PayPal, had earlier warned credit card companies about their facilitation of the illegal sales of cigarettes over the Internet.
ash.org/creditorltr.html

Then ASH wrote to the attorneys general of the 50 states asking them to take legal action. The result was a legal crackdown on companies facilitating the illegal sale of cigarettes on the Internet. ash.org/agtaxletter.html AND ash.org/no-smoking/nov05/11-10-05-1.html

"Companies which facilitate the sale of a product determined by the FDA to be "illegal," and which has such a large number of known and potential health dangers, should either discontinue their support or be prepared to face the legal consequences," warns Prof. Banzhaf.

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law and Executive Director
Action on Smoking and Health (ASH)
America's First Antismoking Organization
2013 H Street, NW, Washington, DC 20006, USA
(202) 659-4310 // (703) 527-8418 // ash.org

Contact Information:
Action on Smoking and Health (ASH)
America's First Antismoking Organization

2013 H St., NW
Washington, DC 20006

Contact Person:
Public Interest Law Professor John Banzhaf
Executive Director
Phone: (202) 659-4310 // (703) 527-8418
email: email

Web: ash.org

California Senate bill SJR 8

BILL NUMBER: SJR 8 AMENDED

BILL TEXT

	AMENDED IN SENATE  JUNE 25, 2009

INTRODUCED BY   Senator Corbett

                        MAY 19, 2009

   Relative to electronic cigarettes.

LEGISLATIVE COUNSEL'S DIGEST

   SJR 8, as amended, Corbett. Electronic cigarettes.
   This measure would request that the federal Food and Drug
Administration  (FDA)  prohibit all sales of electronic
cigarettes until  they have been found by FDA to be safe
  the FDA has found them to be safe  .
   Fiscal committee: no.



   WHEREAS, The chemical nicotine is classified as a drug due to its
stimulative, sedative, and addictive qualities; and
   WHEREAS, More  that   than  90 percent
of smokers who seek to quit their addiction to nicotine fail, most
relapsing within one week; and
   WHEREAS, Extended exposure to nicotine results in tolerance,
requiring escalating doses of the drug to receive the desired
stimulation; and
   WHEREAS, Withdrawal symptoms from nicotine include cognitive and
attention defects, cravings, inability to sleep, and sleep
disturbance; and
   WHEREAS, An unregulated product called electronic cigarettes is
currently being marketed as a smokeless alternative to traditional
cigarettes; and
   WHEREAS, Electronic cigarettes are rechargeable, battery operated
drug delivery devices that look similar to cigarettes and allow the
user to inhale a smokeless vapor often containing nicotine; and
   WHEREAS, Electronic cigarette producers market their product to
children by utilizing shopping mall kiosks and locations frequented
by children; and
   WHEREAS, These marketing efforts are similar to previous attempts
to entice children to use nicotine products. Previous campaigns have
included products such as cigarette candy and advertisements with
cartoon characters and flashy packaging; and
   WHEREAS, Studies show a correlation between children who used
cigarette candy and adults who are current or former smokers; and
   WHEREAS, The federal Food and Drug Administration has previously
banned nicotine lollipops and  nicotine  lip balm; and
   WHEREAS, A study published in the Journal of the National Cancer
Institute found that teens were more likely to be influenced to smoke
by cigarette marketing than by peer pressure. Similarly, a study
published in the Journal of the American Medical Association found
that as much as one-third of underage experimentation with smoking
was attributable to tobacco company marketing efforts; and
   WHEREAS, Electronic cigarettes may increase the number of young
smokers; and
   WHEREAS, According to the National Survey on Drug Use and Health,
over 3,600 people under  the age of 18  18 years
of age  begin smoking daily, 1,100 of whom will become regular
smokers. One-third of these young smokers will die of smoking-related
illnesses; and
   WHEREAS, It is in the best interest of California to protect
children from these products; now, therefore, be it
   Resolved by the Senate and the Assembly of the State of
California, jointly, That the Legislature calls upon local, state,
and federal governments to find ways to prevent the use of nicotine
products by children; and be it further
   Resolved, That the Legislature requests that the federal Food and
Drug Administration (FDA), which has jurisdiction over the regulation
of nicotine products, prohibit all sales of electronic cigarettes
until  they have been found by that FDA to be safe 
 the FDA has found them to be safe  ; and be it further
   Resolved, That the Secretary of the Senate transmit copies of this
resolution to the President and Vice President of the United States,
to the President pro Tempore of the United States Senate, to the
Speaker of the House of Representatives, to each Senator and
Representative from California in the Congress of the United States,
to the Commissioner of the United States Food and Drug
Administration, and to the author for appropriate distribution.

UNOFFICIAL BALLOT

MEASURE:	SJR 8
AUTHOR:	Corbett
TOPIC:	Electronic cigarettes.
DATE:	07/16/2009
LOCATION:	SEN. FLOOR
MOTION:	Senate 3rd Reading SJR8 Corbett
	(AYES  22. NOES  13.)  (PASS)


	AYES
	****

Alquist	Calderon	Cedillo	Corbett
Correa	DeSaulnier	Hancock	Kehoe
Leno	Liu	Lowenthal	Maldonado
Negrete McLeod	Pavley	Price	Romero
Simitian	Steinberg	Wiggins	Wolk
Wright	Yee


	NOES
	****

Aanestad	Ashburn	Cogdill	Cox
Denham	Dutton	Harman	Hollingsworth
Huff	Runner	Strickland	Walters
Wyland


	ABSENT, ABSTAINING, OR NOT VOTING
	*********************************

Benoit	Ducheny	Florez	Oropeza  Padilla

CURRENT BILL STATUS

MEASURE	:  S.J.R. No. 8
AUTHOR(S)	:  Corbett.
TOPIC	:  Electronic cigarettes.
HOUSE LOCATION	:  ASM
+LAST AMENDED DATE  :  06/25/2009


TYPE OF BILL :  
                Active
                Non-Urgency
                Non-Appropriations
                Majority Vote Required
                Non-State-Mandated Local Program
                Non-Fiscal
                Non-Tax Levy

LAST HIST. ACT. DATE:  08/20/2009
LAST HIST. ACTION   :  To Com. on  G.O.
COMM. LOCATION	:  ASM GOVERNMENTAL ORGANIZATION


TITLE	:  Relative to electronic cigarettes.

BILL NUMBER: SJR 8	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 25, 2009

INTRODUCED BY   Senator Corbett

                        MAY 19, 2009

   Relative to electronic cigarettes.


	LEGISLATIVE COUNSEL'S DIGEST


   SJR 8, as amended, Corbett. Electronic cigarettes.
   This measure would request that the federal Food and Drug
Administration  (FDA)  prohibit all sales of electronic
cigarettes until  they have been found by FDA to be safe
  the FDA has found them to be safe  .
   Fiscal committee: no.



   WHEREAS, The chemical nicotine is classified as a drug due to its
stimulative, sedative, and addictive qualities; and
   WHEREAS, More  that   than  90 percent
of smokers who seek to quit their addiction to nicotine fail, most
relapsing within one week; and
   WHEREAS, Extended exposure to nicotine results in tolerance,
requiring escalating doses of the drug to receive the desired
stimulation; and
   WHEREAS, Withdrawal symptoms from nicotine include cognitive and
attention defects, cravings, inability to sleep, and sleep
disturbance; and
   WHEREAS, An unregulated product called electronic cigarettes is
currently being marketed as a smokeless alternative to traditional
cigarettes; and
   WHEREAS, Electronic cigarettes are rechargeable, battery operated
drug delivery devices that look similar to cigarettes and allow the
user to inhale a smokeless vapor often containing nicotine; and
   WHEREAS, Electronic cigarette producers market their product to
children by utilizing shopping mall kiosks and locations frequented
by children; and
   WHEREAS, These marketing efforts are similar to previous attempts
to entice children to use nicotine products. Previous campaigns have
included products such as cigarette candy and advertisements with
cartoon characters and flashy packaging; and
   WHEREAS, Studies show a correlation between children who used
cigarette candy and adults who are current or former smokers; and
   WHEREAS, The federal Food and Drug Administration has previously
banned nicotine lollipops and  nicotine  lip balm; and
   WHEREAS, A study published in the Journal of the National Cancer
Institute found that teens were more likely to be influenced to smoke
by cigarette marketing than by peer pressure. Similarly, a study
published in the Journal of the American Medical Association found
that as much as one-third of underage experimentation with smoking
was attributable to tobacco company marketing efforts; and
   WHEREAS, Electronic cigarettes may increase the number of young
smokers; and
   WHEREAS, According to the National Survey on Drug Use and Health,
over 3,600 people under  the age of 18  18 years
of age  begin smoking daily, 1,100 of whom will become regular
smokers. One-third of these young smokers will die of smoking-related
illnesses; and
   WHEREAS, It is in the best interest of California to protect
children from these products; now, therefore, be it
   Resolved by the Senate and the Assembly of the State of
California, jointly, That the Legislature calls upon local, state,
and federal governments to find ways to prevent the use of nicotine
products by children; and be it further
   Resolved, That the Legislature requests that the federal Food and
Drug Administration (FDA), which has jurisdiction over the regulation
of nicotine products, prohibit all sales of electronic cigarettes
until  they have been found by that FDA to be safe 
 the FDA has found them to be safe  ; and be it further
   Resolved, That the Secretary of the Senate transmit copies of this
resolution to the President and Vice President of the United States,
to the President pro Tempore of the United States Senate, to the
Speaker of the House of Representatives, to each Senator and
Representative from California in the Congress of the United States,
to the Commissioner of the United States Food and Drug
Administration, and to the author for appropriate distribution.

SB 400, Corbett. Tobacco

BILL NUMBER: SB 400 ENROLLED

BILL TEXT

	PASSED THE SENATE  SEPTEMBER 11, 2009
	PASSED THE ASSEMBLY  SEPTEMBER 8, 2009
	AMENDED IN ASSEMBLY  SEPTEMBER 2, 2009
	AMENDED IN ASSEMBLY  JULY 23, 2009
	AMENDED IN ASSEMBLY  JUNE 23, 2009
	AMENDED IN SENATE  JUNE 1, 2009
	AMENDED IN SENATE  MAY 21, 2009
	AMENDED IN SENATE  MAY 12, 2009
	AMENDED IN SENATE  APRIL 23, 2009

INTRODUCED BY   Senator Corbett
   (Coauthor: Senator Alquist)
   (Coauthors: Assembly Members Eng, Fong, and Jones)

                        FEBRUARY 26, 2009

   An act to amend Sections 22950.5, 22955, and 22962 of the Business
and Professions Code, and to add Section 111247 to the Health and
Safety Code, relating to tobacco.

LEGISLATIVE COUNSEL'S DIGEST SB 400, Corbett. Tobacco.

   Existing law, the Stop Tobacco Access to Kids Enforcement Act
(STAKE Act), establishes various requirements for retailers relating
to tobacco sales to minors. A violation of this act is a crime.
   This bill would authorize action to halt the sale, distribution,
or offering for sale of electronic cigarettes that have not been
approved or cleared by the federal Food and Drug Administration. By
changing the definition of an existing crime, this bill would impose
a state-mandated local program.
   Existing law, the Sherman Food, Drug, and Cosmetic Law, requires
the State Department of Public Health to regulate the manufacture,
sale, labeling, and advertising activities related to food, drugs,
devices, and cosmetics in conformity with the federal Food, Drug, and
Cosmetic Act. A violation of these provisions is a crime.
   This bill would deem any article that can provide inhaled doses of
nicotine by delivering a vaporized solution a drug under these
provisions. By expanding the definition of an existing crime, this
bill would impose a state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 22950.5 of the Business and Professions Code is
amended to read:
   22950.5.  For purposes of this division, the following terms have
the following meanings:
   (a) "Department" means the State Department of Public Health.
   (b) "Enforcing agency" means the State Department of Public
Health, another state agency, including, but not limited to, the
office of the Attorney General, or a local law enforcement agency,
including, but not limited to, a city attorney, district attorney, or
county counsel.
   (c) "Tobacco product" means a product containing tobacco leaf,
including, but not limited to, cigarettes, cigars, pipe tobacco,
snuff, chewing tobacco, dipping tobacco, bidis, or other preparation
of tobacco.
  SEC. 2.  Section 22955 of the Business and Professions Code is
amended to read:
   22955.  Agents of the department, while conducting enforcement
activities pursuant to this division, are peace officers and are
subject to all of the powers and immunities granted to Food and Drug
Section inspectors pursuant to Section 106500 of the Health and
Safety Code in the same manner as are any Food and Drug Section
inspectors of the state department. These agents may take enforcement
action to halt the sale, distribution, or offering for sale of
electronic cigarettes that can deliver inhaled doses of nicotine by
delivering a vaporized solution that has not been approved or cleared
by the United States Food and Drug Administration.
  SEC. 3.  Section 22962 of the Business and Professions Code is
amended to read:
   22962.  (a) For purposes of this section, the following terms have
the following meanings:
   (1) "Self-service display" means the open display of tobacco
products or tobacco paraphernalia in a manner that is accessible to
the general public without the assistance of the retailer or employee
of the retailer.
   (2) "Tobacco paraphernalia" means cigarette papers or wrappers,
blunt wraps as defined in Section 308 of the Penal Code, pipes,
holders of smoking materials of all types, cigarette rolling
machines, or other instruments or things designed for the smoking or
ingestion of tobacco products.
   (3) "Tobacco store" means a retail business that meets all of the
following requirements:
   (A) Primarily sells tobacco products.
   (B) Generates more than 60 percent of its gross revenues annually
from the sale of tobacco products and tobacco paraphernalia.
   (C) Does not permit a person under 18 years of age to be present
or enter the premises at any time, unless accompanied by the person's
parent or legal guardian, as defined in Section 6903 of the Family
Code.
   (D) Does not sell alcoholic beverages or food for consumption on
the premises.
   (b) (1) (A) Except as permitted in subdivision (b) of Section
22960, it is unlawful for a person engaged in the retail sale of
tobacco products to sell, offer for sale, or display for sale a
tobacco product or tobacco paraphernalia by self-service display. A
person who violates this section is subject to those civil penalties
specified in the schedule in subdivision (a) of Section 22958.
   (B) A person who violates this section is subject to those civil
penalties specified in the schedule in subdivision (a) of Section
22958.
   (2) It is unlawful for a person engaged in the retail sale of
blunt wraps to place or maintain, or to cause to be placed or
maintained, a blunt wraps advertising display within two feet of
candy, snack, or nonalcoholic beverage displayed inside a store or
business.
   (3) It is unlawful for a person or business to place or maintain,
or cause to be placed or maintained, a blunt wrap advertising display
that is less than four feet above the floor.
   (c) Subdivision (b) shall not apply to the display in a tobacco
store of cigars, pipe tobacco, snuff, chewing tobacco, or dipping
tobacco, provided that in the case of cigars they are generally not
sold or offered for sale in a sealed package of the manufacturer or
importer containing less than six cigars. In an enforcement action
brought pursuant to this division, the retail business that displays
any of the items described in this subdivision in a self-service
display shall have the burden of proving that it qualifies for the
exemption established in this subdivision.
   (d) The Attorney General, a city attorney, a county counsel, or a
district attorney may bring a civil action to enforce this section.
   (e) This section does not preempt or otherwise prohibit the
adoption of a local standard that imposes greater restrictions on the
access to tobacco products than the restrictions imposed by this
section. To the extent that there is an inconsistency between this
section and a local standard that imposes greater restrictions on the
access to tobacco products, the greater restriction on the access to
tobacco products in the local standard shall prevail.
  SEC. 4.  Section 111247 is added to the Health and Safety Code, to
read:
   111247.  Any article that can provide inhaled doses of nicotine by
delivering a vaporized solution, including, but not limited to, an
electronic cigarette, shall be deemed to be a drug as defined in
Section 109925. This section shall not be construed as bearing on or
being relevant to the question of whether any other product is a drug
as defined in Section 109925 or a device as defined in Section
109920.
  SEC. 5.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
           

Schwarzenegger vetos ban on Electronic Cigarettes

It's back to the California Senate for senator Ellen Corbetts SB 400. What started out as a green energy and vehicle bill, then morphed into a protect the children from cigarettes bill and finally in early september became a bill to ban the sale of electronic cigarettes until they were FDA approved or "cleared", is now back on her desk once again.

The sad part for the senator, the last minute additions of the electronic cigarette ban have left her other modifications to the Stop Tobacco Access to Kids Enforcement Act on the cutting room floor as well.

Governor Schwarzenegger said in his message to lawmakers:

To the Members of the California State Senate:

I am returning Senate Bill 400 without my signature.

While I support restricting access of electronic cigarettes to children under the age of 18, I cannot sign a measure that also declares them a federally regulated drug when the matter is currently being decided through pending litigation.

 Items defined as “tobacco products” are legal for anyone over the age of 18. If adults want to purchase and consume these products with an understanding of the associated health risks, they should be able to do so unless and until federal law changes the legal status of these tobacco products.

 For this reason, I am unable to sign this bill.

Sincerely,

Arnold Schwarzenegger

Schwarzenegger is a life long champion of health, multi year winner of Mr. Universe and a strong anti smoking proponent, yet in a bold move on this issue he seems to have sided with the rights of adults to choose their tobacco products. He will also leave it up to the FDA and the courts to decide if electronic cigarettes are a drug delivery system and refuses to set national policy from his desk.

Way to go Arnold!!