Washington Lawyer about FDA and Pact Act

[LaZeR]

I sure hope you are right. Otherwise, I'm goin to be single again and back to dippin Copenhagen w/ fiberglass init.

HotLink This

--->

Edit, OMG LoL. What have I done?

[sgreger1]

I did read Skruf is going to make their portions lighter, maybe they could use fiberglass to bring them up to 1 gram.

Why make them lighter Tom, why are you sucha racist? What's wrong with darker?

I find this picture you posted extremely racist:










Any chance of a Skruf watermellow & KFC flavored portion?

[tom502]

I don't make Skruf, though watermelon might be good.

[LaZeR]

OMG what is going on in here?

Watermelon SnUs... Hrmmm

[danielan]

OMG what is going on in here?

Watermelon SnUs... Hrmmm

It's like we're stuck in some kind of time loop.

https://www.lorannoils.com/p-8695-wa...on-flavor.aspx

[PipenSnus]

Offroad Moonshine tastes like a spiked watermelon to me.

[danielan]

Offroad Moonshine tastes like a spiked watermelon to me.

Really? Maybe I need to try those 2 cans I have stashed... I was kind of avoiding them.

[WickedKitchen]

It's good to avoid them.

[f. bandersnatch]

If they do I will promptly not pay them

Best strategy I have heard so far concerning this mess. Once again, the Dog's style is infallible.

[Northerner.com]

Here is our latest answer from our Washington lawyer which means we will still be able to ship brands not listed at FDA:

1. FDA Registration and Listing Questions

Under FDA’s current guidance, which will likely be applicable until FDA promulgates regulations relating to foreign establishments, Northerner is not required to register or list its products with FDA because it does not own or operate a domestic tobacco manufacturing establishment. In its November 2009 guidance on registration and listing (attached), FDA clearly stated, “Registration and product listing requirements apply only to those persons who own or operate domestic establishments engaged in manufacturing tobacco products; an importer who does not own or operate such an establishment is not subject to the requirements of section 905(b) or section 905(i) of the act.”

We recognize that, as you noted, the FFDCA’s general definition of “tobacco product manufacturer” includes importers. However, the registration and listing requirements apply only to the narrower category of establishments engaged in the “manufacture, preparation, compounding, or processing” of tobacco or tobacco products. Manufacturing includes repackaging or otherwise changing the container, wrapper, or labeling of any tobacco product package; however, we understand that the labeling done by Northerner takes place outside the US and therefore would not be considered domestic manufacturing. Because Northerner’s U.S. subsidiary imports but does not actually manufacture tobacco products, neither Northerner nor its U.S. subsidiary is currently required to register with FDA or submit product lists.

Finally, while section 905(h) of the FFDCA requires owners and operators of foreign establishments engaged in the manufacture, preparation, compounding, or processing of tobacco or tobacco products to register their these facilities with FDA “under regulations promulgated by the Secretary,” and section 905(i)(1) requires foreign registrants to file product lists, FDA has not promulgated foreign establishment registration regulations and has indicated that it will not enforce these requirements with respect to foreign establishments. Until FDA promulgates applicable regulations, Northerner will not have to register its foreign establishments or submit product lists.

2. PACT Act Questions

By creating 18 U.S.C. § 1716E, Section 3 of the PACT Act prohibits delivering cigarettes and smokeless tobacco through the United States Postal Service. Although there are exceptions, none would apply to the delivery of snus sold on the internet. Delivery sellers may still, however, ship cigarettes and smokeless tobacco using private services like UPS.

With regard to the payment of taxes, Section 2A(a)(3) of the Jenkins Act, as amended by the PACT Act, requires delivery sellers to comply with “all State, local, tribal, and other laws generally applicable to sales of cigarettes or smokeless tobacco as if the delivery sales occurred entirely within the specific State and place, including laws imposing—(A) excise taxes; (B) licensing and tax-stamping requirements; (C) restrictions on sales to minors; and (D) other payment obligations or legal requirements relating to the sale, distribution, or delivery of cigarettes or smokeless tobacco.” While section 2A(a)(3)’s list does not specifically include sales tax, it is not presented as an exhaustive list of all the “[s]tate, local, tribal, or other laws generally applicable to sales of cigarettes or smokeless tobacco” with which a delivery seller must comply. Thus, it appears that sales tax would likely be included in the PACT Act’s requirements.

With regard to the comment from your customer, we are not aware of any basis for concluding that the PACT Act’s requirements regarding compliance with state and local laws would not apply to foreign delivery sellers. Indeed, our prior discussions with ATF and TTB indicate that these enforcement agencies view the PACT Act’s requirements as applying to foreign delivery sellers. The definition of “Into a state, place, or locality” quoted by your customer refers to “interstate commerce,” which the preceding subparagraph defines as, among other things, “commerce between a State and any place outside the State.” (emphasis added). A foreign country would qualify as “a place outside the State” to which cigarettes or smokeless tobacco would be shipped as part of a delivery sale. We also note that, in section 1(b)(9) of the PACT Act, Congress specifically discussed the growing number of internet vendors in foreign countries who sell cigarettes and smokeless tobacco to buyers in the United States, indicating that Congress had such businesses in mind when it enacted the legislation.

Sincerely,
Frank

[lxskllr]

Does this mean all the brands you currently carry will remain available? If so, that's great news.

[Simplysnus]

Awesome

[Snusdog]

With regard to the comment from your customer, we are not aware of any basis for concluding that the PACT Act’s requirements regarding compliance with state and local laws would not apply to foreign delivery sellers. Indeed, our prior discussions with ATF and TTB indicate that these enforcement agencies view the PACT Act’s requirements as applying to foreign delivery sellers. The definition of “Into a state, place, or locality” quoted by your customer refers to “interstate commerce,” which the preceding subparagraph defines as, among other things, “commerce between a State and any place outside the State.” (emphasis added). A foreign country would qualify as “a place outside the State” to which cigarettes or smokeless tobacco would be shipped as part of a delivery sale. We also note that, in section 1(b)(9) of the PACT Act, Congress specifically discussed the growing number of internet vendors in foreign countries who sell cigarettes and smokeless tobacco to buyers in the United States, indicating that Congress had such businesses in mind when it enacted the legislation.

Sincerely,
Frank

Frank thanks for keeping us posted.

I think the point the lawyers make is the very point of contention and would require a court ruling to finalize. The question is which term is the definitive term.

If "Interstate Commerce" is definitive then it qualifies our understanding of "a place outside the state" to mean any place (however designated) within the jurisdictional boundaries of the USA. {This is the most natural and less problematic of the readings}

If "a place outside the State" is understood as the definitive term then the the restrictions of the law apply to all sales regardless of whether they originate in Oregano, Sweden, or Mars. {in this reading a sub category has taken precedence over a category and clarification has become insidious and covert redefinition- in that one term (Interstate Commerce) is being used to mask the presence of another entirely different term (International Commerce). Such then is not a clarification of meaning but a willful distortion of meaning}

The problem I see with the second option is that it makes much of the law nonsensical. For example, if the second option is indeed the reading intended by the lawmakers then why use the term Interstate Commerce at all. The proper designation would simply be Commerce (with no qualifying term prefixed since no qualification is intended). Likewise, why do all the clarifications listed concern traditional interstate transactions (tribal nations, territories, etc)? Why is there not one mention of foreign vendors? If indeed International Commerce is intended as an equal focus of the law then it seems it would require the same clarification and attention that the traditional understanding of Interstate commerce has received. {Notice the entire law is absolutely and utterly silent on the issue of Foreign vendors. There is not ONE mention, not one. The entirety of the law deals with sales within the USA. And now I am to believe that one phrase under the clear heading of Interstate Commerce is to assume International meaning and implications?! Really?!}

Generally, the subject heading sets the parameters of the subject discussed. Thus if a law had a section titled South Carolina Education and then goes on to stipulate that All students must wear blue shirts . The understanding would be that All South Carolina students must wear blue shirts since that is limitation established by subject heading of the law.

By analogy: in our case with Pact it seems that the Subject heading designates South Carolina Education but then we are reading the stipulations as if they redefined "South Carolina Education" to mean "International or Universal Education" (All Students must wear blue shirts regardless of whether they live in SC or not). If that were the case then why make the original designation at all.

Interstate commerce is not International commerce. A discussion of commerce under the designation of Interstate must assume Interstate qualifications.

The question then is this: does the heading qualify the discussion or does the discussion in essence redefine the heading to the extent that it becomes a wholly open-ended and meaningless term. Interstate Commerce no longer means commerce between the states, territories and jurisdictions of a nation. The term now means anything and thus designates nothing in particular.

Like I said earlier this will probably take a court to decide.

However, if this IS how language is used in law, And if this manner of elastic language is deemed acceptable......... then every law maker and every Lawyer should be seized, taken out, and shot at once for treason. For such is to the demise and the mis-leading of the people

'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean - neither more nor less.' 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'
- Lewis Carroll

Again thank you Frank for keeping us posted

[Snusdog]

Somebody else comment on this. I would love some more input

[GoVegan]

YES! I can now have some room in my freezer for food. I am taking it for granted that Northerner will continue to buy and sell Granit.