May 21, 2015
“How can they suggest Indiana law somehow treats nearly identical products differently?”
Just in case you haven’t heard, on May 12 attorney Gregory Troutman filed a complaint (lawsuit) on behalf of three Indiana vape shop owners. They are suing the state of Indiana over their recent enactment of former HB 1432, now Enroll Act 1432. The vape shops include Derb E Cigs, Legato Vapors and Jet Setter Vapors.
Anyone who follows vaping is hardly surprised that a vape shop, or in this case three vape shops, have filed a suit over a newly enacted state law. Even Indiana’s Attorney General was not surprised – “Since there is much unknown about the new devices and health consequences surrounding e-cigarettes, litigation is not unexpected.” Same ol’ same ol’, right? Maybe. But maybe not.
This suit was not filed in Municipal court. It was not filed in Superior court. It was filed in Federal court. Federal courts have jurisdiction in a variety of situations. The one most relevant to this lawsuit – “Cases involving violations of the U.S. Constitution or federal laws.” The vape shop owners, the plaintiffs in this case, are alleging that the law passed by the Indiana legislature is unconstitutional. I’m not an attorney but it’s my understanding that’s a pretty big deal.
The vape shops are contending that the Indiana law is discriminatory. It treats nearly identical products differently.
Sec. 9 of the law states [emphasis mine]: “Electronic cigarette” means a powered vaporizer that: (1) is the size and shape of a traditional cigarette; (2) uses a sealed nonrefillable cartridge containing not more than four (4) milliliters of a liquid; and (3) is intended to be vaporized and inhaled. The term does not include a vapor pen.”
To get a definition of “vapor pen” we have to jump to Sec. 23 which states [emphasis mine]: “Vapor pen” means a powered vaporizer, other than an electronic cigarette, that converts e-liquid to a vapor intended for inhalation.
Sec. 10 of the law states [emphasis mine]: “E-liquid” means a substance that: (1) is intended to be vaporized and inhaled using a vapor pen; and (2) specifically excludes substances contained in nonrefillable sealed cartridges of four (4) milliliters or less used in electronic cigarettes.
So, according to Indiana law:
- An “electronic cigarette” is a “powered vaporizer”. Shaped like a traditional cigarette. With a nonrefillable cartridge. Intended to be vaporized and inhaled. Unless – it’s a “vapor pen”.
- A “vapor pen” is a “powered vaporizer”. Intended to be vaporized and inhaled. Unless – it’s an “electronic cigarette”.
- “E-liquid” is e-liquid. Unless – it’s in an “electronic cigarette”. Then it’s not “e-liquid”. It’s “a liquid”.
How could the vape shop owners possibly contend that Indiana law is discriminatory? The law spells out the glaring differences in black and white! How can they suggest Indiana law somehow treats nearly identical products differently?
I’ll tell you how. These small business entrepreneurs actually have the unmitigated gall to suggest that the fine, upstanding legislators of Indiana have drafted a law that favors the only manufacturers of “electronic cigarettes” – Big Tobacco.
Is that ridiculous or what? Indiana lawmakers have very clearly stated they are acting to “promote public safety and welfare”. A goal that, as we all know, is shared by Big Tobacco.
Don’t these vape shop people appreciate the tens of millions of dollars that Big Tobacco contributes to the Hoosier state? Every single year. It would be absurd to require that these giant corporations get permits to do business in Indiana. It’s the small business owners we need to worry about!
It is unthinkable that Big Tobacco would ever fail in their promise to support Indiana legislators in “ensuring that e-liquid is not contaminated or adulterated by the inclusion of ingredients or other substances that might pose unreasonable threats to public health and safety.”
Vape shops vs. Indiana – can they win? We’ll have to wait and see. Indiana’s Attorney General, Greg Zoeller, has his work cut out for him. This legislation is blatantly discriminatory. Surely Zoeller has to know that. But he also knows the state has the right to be defended. A right he is responsible for protecting.
I once asked an attorney friend of mine how he, in good conscience, can represent a defendant who he knows to be guilty. I’ll never forget his answer – “I’m not defending the person, I’m defending the Constitution.” That is what this case is all about.
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Dave Coggin has a Master’s Degree in business and spent 35 years in corporate America. He is a co-founder and partner in DIYELS. He has spent the last five years actively researching and following the evolution of the e-cigarette industry. He is a strong proponent of e-cigarettes as the most promising option currently known for tobacco harm reduction. He may be contacted directly at firstname.lastname@example.org .
The opinions presented here are exclusively those of the author. Vaper’s Vortex is offered as a service to our customers and followers. Anyone considering e-cigarettes as an alternative to tobacco cigarettes should seek qualified advice from a medical professional.