The most important vaporization discussion we need to have. (Your Vape Mail)

[invertedisdead]

See 21 U.S.C. § 863(e)(1). Factor (2) – “descriptive materials accompanying the item which explain or depict its use.” The Volcano Vaporizer retail unit includes a “Quick Start Manual” which illustrates how the merchandise is intended to be used. The literature does not name one particular ingredient in their step by step instructions, but simply references to a “substance” being vaporized.

The problem is the new law includes the classification “or any other substance”
and the notion of “inhaling from the device” which distinguishes that from aromatherapy diffusers and nebulizers.

 

[flammy]

See 21 U.S.C. § 863(e)(1). Factor (2) – “descriptive materials accompanying the item which explain or depict its use.” The Volcano Vaporizer retail unit includes a “Quick Start Manual” which illustrates how the merchandise is intended to be used. The literature does not name one particular ingredient in their step by step instructions, but simply references to a “substance” being vaporized.

The problem is the new law includes the classification “or any other substance”
and the notion of “inhaling from the device” which distinguishes that from aromatherapy diffusers and nebulizers.

This is why concentrate devices might find it hard to use that defense since concentrate devices satisfies the limiting factor of being able to aerosolize a solution. Dry herb devices do not satisfy that limiting factor and thus "any other substance" is not applicable which is why dry herb devices can still use that exemption/defense.

 

[Hackerman]

Hey guys, they just announced an amendment to the PACT Act. It now includes any and all "Aromatherapy" devices.

OK, OK. that's not true. BUT, it could be with a single stroke of the pen. Let us not forget that THEY can do ANYTHING THEY WANT (I think they just proved that with all the online site closures from the shipping ban) and we are pretty much helpless. We can bitch and vote and write letters but in the end, THEY make all the decisions. So, if They ALLOW us the re-naming loophole, then we shall have it. If they don't, we shall not. 21st Century government.

Maybe we can all chip in and buy a Congressman or 2. LOL You think they would allow me to start a GOFUNDME to buy a politician? LMAO

 

[invertedisdead]

This is why concentrate devices might find it hard to use that defense since concentrate devices satisfies the limiting factor of being able to aerosolize a solution. Dry herb devices do not satisfy that limiting factor and thus "any other substance" is not applicable which is why dry herb devices can still use that exemption/defense.

I know you keep saying it, I just don’t see it. Air is a solution. It’s also a fluid. Trying to make the argument of doing aromatherapy - overcoming the molecules vapor pressure to release oils into an aerosol - while not producing an aerosol - sounds like a challenge. The real problem is we all want to take the stance that this law was written poorly - it wasn’t - it was extremely well done. They even went as far as to cover “e-pipes” so that if you wanted to say your device was for smoking and wasn’t a vape, it’s still covered. It’s so broad and expansive it reads like a patent lawyer devised it. For example, do any of us know what an “advanced refillable personal vaporizer“ actually consists of? Whatever it is, it’s not allowed.

And don’t get me wrong, we’re all on the same team here.

I sincerely hope that you are right.

 

[florduh]

So "Build Back, Better" means killing a bunch of small businesses during a recession? COOL!

Have we tried explaining to these people that dry herb vapes are way too dorky (and expensive) for teenagers to use?

 

[RustyOldNail]

This whole thing is a GOAT RODEO!

A goat rodeo is a slang term for something going totally, unbelievably, disastrously wrong, and there's nothing left to do but to sit back and watch the trainwreck. In other words, a goat rodeo is a chaotic situation, fiasco, or, more vulgarly, a shitshow.

goat rodeo Meaning & Origin | Slang by Dictionary.com

A goat rodeo is a slang term for something going totally, unbelievably, disastrously wrong, and there’s nothing left to do but to sit back and watch the trainwreck.

www.dictionary.com

 

[BrianTL]

This is why concentrate devices might find it hard to use that defense since concentrate devices satisfies the limiting factor of being able to aerosolize a solution. Dry herb devices do not satisfy that limiting factor and thus "any other substance" is not applicable which is why dry herb devices can still use that exemption/defense.

Idk, I still think thats a stretch and pretty optimistic.

Personally I see it the other way, its not the ability to "aerosolize a solution" its inhaling an "aerosolized solution" which IMO (non scientific, non legal) is exactly what vapor is. The dry herb itself is not a solution, but once you heat up those oils, mixing the vaporized oils into the air stream, that mix becomes an aerosolized solution.

Not you specifically but a loooooot of wordsmithing in general around this. The reality is we can talk about it all we want, imagining loopholes and getting one over on the man. It's just not realistic. Your average small business owner in the vape world right now has 3 choices I guess... shut the doors, outwardly go on the legal offensive, or continue as is and see how long they can get away with it. The latter 2 are very daunting and potentially life changing - either way, extreeeemely expensive and risky. Too risky I think for most people. Maybe a larger company like S&B could spearhead it, but who else has deep enough pockets to make that attempt?

Which brings us back around to the wordsmithing. If I'm a small business owner dealing selling dry herb vapes - 0% I am hanging my hat on the fact I maaay possibly be right about my interpretation of how the law is written. If I'm caught, I KNOW I'm not stumping the DA - hey, you cant charge me with this, dry herb isn't a solution so I am exempt! Gotcha! Drop the charges! It will be much more complicated than that.


On a side note... this is what people talk about when they say slippery slopes. I remember when they made a huge deal about "Mango flavored Juuls" as I'm sure all of us do. It's anything. Vaporizers aren't the first industry to be hit with a situation like this and they certainly wont be the last.

Give them an inch, they take a mile...

 

[flammy]

I know you keep saying it, I just don’t see it. Air is a solution. It’s also a fluid. Trying to make the argument of doing aromatherapy - overcoming the molecules vapor pressure to release oils into an aerosol - while not producing an aerosol - sounds like a challenge. The real problem is we all want to take the stance that this law was written poorly - it wasn’t - it was extremely well done. They even went as far as to cover “e-pipes” so that if you wanted to say your device was for smoking and wasn’t a vape, it’s still covered. It’s so broad and expansive it reads like a patent lawyer devised it. For example, do any of us know what an “advanced refillable personal vaporizer“ actually consists of? Whatever it is, it’s not allowed.

And don’t get me wrong, we’re all on the same team here.

I sincerely hope that you are right.

The PACT act amendment essentially eliminates the continued use of an aromatherapy device as an alternative intended use. Most every aromatherapy devices use essential oils which are solutions which are then aerosolized by the aromatherapy device to produce an aerosol. That would be an ENDS.

Idk, I still think thats a stretch and pretty optimistic.

Personally I see it the other way, its not the ability to "aerosolize a solution" its inhaling an "aerosolized solution" which IMO (non scientific, non legal) is exactly what vapor is. The dry herb itself is not a solution, but once you heat up those oils, mixing the vaporized oils into the air stream, that mix becomes an aerosolized solution.

Not you specifically but a loooooot of wordsmithing in general around this. The reality is we can talk about it all we want, imagining loopholes and getting one over on the man. It's just not realistic. Your average small business owner in the vape world right now has 3 choices I guess... shut the doors, outwardly go on the legal offensive, or continue as is and see how long they can get away with it. The latter 2 are very daunting and potentially life changing - either way, extreeeemely expensive and risky. Too risky I think for most people. Maybe a larger company like S&B could spearhead it, but who else has deep enough pockets to make that attempt?

Which brings us back around to the wordsmithing. If I'm a small business owner dealing selling dry herb vapes - 0% I am hanging my hat on the fact I maaay possibly be right about my interpretation of how the law is written. If I'm caught, I KNOW I'm not stumping the DA - hey, you cant charge me with this, dry herb isn't a solution so I am exempt! Gotcha! Drop the charges! It will be much more complicated than that.


On a side note... this is what people talk about when they say slippery slopes. I remember when they made a huge deal about "Mango flavored Juuls" as I'm sure all of us do. It's anything. Vaporizers aren't the first industry to be hit with a situation like this and they certainly wont be the last.

Give them an inch, they take a mile...

Except under that interpration, the term aerosolized solution is redundant. If that term was meant to describe what was being exhaled a much simpler way would be to simply say aerosol.

The reason why the verbiage "through an aerosolized solution" was used is because nicotine juice is a solution and its being aerosolized when vaped.

Also, to be fair, even prior to Pact Act amendment the industry as a whole has been taking a risk by exploiting the alternative intended use loophole. We all know that people dont generally use Volcanos to vape eucalyptus or chamomile. But yet stores still stock them and ship them in direct contravention to the drug paraphernalia law. The issue is that there is some confusion over how to interpret the verbiage of ENDS definition.

 

[BrianTL]

Except under that interpration, the term aerosolized solution is redundant. If that term was meant to describe what was being exhaled a much simpler way would be to simply say aerosol.

The reason why the verbiage "through an aerosolized solution" was used is because nicotine juice is a solution and its being aerosolized when vaped.

Also, to be fair, even prior to Pact Act amendment the industry as a whole has been taking a risk by exploiting the alternative intended use loophole. We all know that people dont generally use Volcanos to vape eucalyptus or chamomile. But yet stores still stock them and ship them in direct contravention to the drug paraphernalia law.

Right I agree its redundant. But who's going to fight that battle? Like I said you either got a small business owner taking that risk, hoping he doesnt get caught, and he probably will... if thats me, I'm not too confident I'm going to get away scott free because of a redundant wording. It's not like a traffic ticket if the cop puts down the wrong date you get it thrown out...

IMO, what we're inhaling is an aerosolized solution, rather than a liquidized solution I guess? I think it's just specifying that its an air-mix rather than a liquid-mix. That's how I take it anyway. I hope you are right and maybe it was intended to only be referring to something that is in a liquid state prior to being inhaled. I just dont think it's referring to the material state - prior to being consumed.

& Agreed on the whole "tobacco use only" or "aromatherapy" thing.

If/when MJ becomes federally legal I guess that would be ok and we could just openly say its an MJ vape, but then again they have that "any other substance" wording in there too so idk...

 

[flammy]

Right I agree its redundant. But who's going to fight that battle? Like I said you either got a small business owner taking that risk, hoping he doesnt get caught, and he probably will... if thats me, I'm not too confident I'm going to get away scott free because of a redundant wording. It's not like a traffic ticket if the cop puts down the wrong date you get it thrown out...

IMO, what we're inhaling is an aerosolized solution, rather than a liquidized solution I guess? I think it's just specifying that its an air-mix rather than a liquid-mix. That's how I take it anyway. I hope you are right and maybe it was intended to only be referring to something that is in a liquid state prior to being inhaled. I just dont think it's referring to the material state - prior to being consumed.

& Agreed on the whole "tobacco use only" or "aromatherapy" thing.

If/when MJ becomes federally legal I guess that would be ok and we could just openly say its an MJ vape, but then again they have that "any other substance" wording in there too so idk...

The people who will fight this battle should be the people who fought the battle against the drug paraphernalia law. Even though an intended use exemption can work, it doesn't always and thus there was still risk just like there is still risk now.

It doesn't matter if you say "aerosolized" or "liquified". In either instance, you would be performing that action on a solution. Dry herb is not a solution.

 

[BrianTL]

The people who will fight this battle should be the people who fought the battle against the drug paraphernalia law. Even though an intended use exemption can work, it doesn't always and thus there was still risk just like there is still risk now.

It doesn't matter if you say "aerosolized" or "liquified". In either instance, you would be performing that action on a solution. Dry herb is not a solution.

Yes, but as long as that fight may take, the immediate future is looking very dark for the little guys, the mom and pop places, hobbyists that found a way to make a few bucks while doing what they love...thats the point I was trying to make. They really dont have many options here.

I'm also not arguing that dry herb is a solution by itself. However, what we are inhaling is a solution, and it's aslo an aerosol. It becomes that after the heat is applied, the oils are released and mixed into the air stream. I just think its a very optimistic view to say the law is only to be applied to something that was already a solution, before becoming an aerosol.

At the end of the day though that is something that would have to be tested in court. Or, further guidance specifically stating its legal to ship vaporizers intended to be used only for dry herb, which as we all know - we've been shipping Marijuana products saying they're for tobacco, for a reason... so now we cant say tobacco, cant say marijuana - at least until its cool on the federal level.

Again I'm not a lawyer or a scientist...not even college educated... so maybe this is above my head idk. I really dont see a judge saying the redundancy in wording automatically exempts dry herb vapes, if it ever came down to it in an actual case.

 

[florduh]

Given how comprehensive the wording seems, it looks like whoever came up with it knew what they were doing. If the stated purpose was protecting THE CHILDREN, why not simply make the shipment of nicotine illegal?

Making it illegal to ship empty vaporizers seems akin to banning the shipment of wine glasses to prevent children from drinking. The vessel isn't "the problem" here. The kids still need to source a drug to put into that vessel.

I also find it funny that I can buy rolling papers from Amazon to consume my 100% legal CBD flower, but a safer consumption vessel is illegal to ship.

 

[ChooChooCharlie]

Few days ago when buying half inch pipe screens from Amazon (for Bowle, not bowl or bowel) , they forced me to verify my age with an ID number, I chose to type in my drivers license number. When I ordered more screens yesterday, no pop-up age verification. Assume you get age verified once there. They could easily handle the regulatory state by state nonsense. They have the technology, they can build an online vape shop, bigger, better than before

 

[flammy]

Yes, but as long as that fight may take, the immediate future is looking very dark for the little guys, the mom and pop places, hobbyists that found a way to make a few bucks while doing what they love...thats the point I was trying to make. They really dont have many options here.

I'm also not arguing that dry herb is a solution by itself. However, what we are inhaling is a solution, and it's aslo an aerosol. It becomes that after the heat is applied, the oils are released and mixed into the air stream. I just think its a very optimistic view to say the law is only to be applied to something that was already a solution, before becoming an aerosol.

At the end of the day though that is something that would have to be tested in court. Or, further guidance specifically stating its legal to ship vaporizers intended to be used only for dry herb, which as we all know - we've been shipping Marijuana products saying they're for tobacco, for a reason... so now we cant say tobacco, cant say marijuana - at least until its cool on the federal level.

Again I'm not a lawyer or a scientist...not even college educated... so maybe this is above my head idk. I really dont see a judge saying the redundancy in wording automatically exempts dry herb vapes, if it ever came down to it in an actual case.

What we are inhaling is definitely a solution since its an aerosol and an aerosol is by definition a solution. I'm not disputing that at all.

I mentioned this prior but the FDA provides guidance on this topic and the FDA is the agency that has purview over this topic (ATF is the enforcement agency). Here is what the FDA says:

"ENDS are noncombustible tobacco products. These products use an “e-liquid” that may contain nicotine, as well as varying compositions of flavorings, propylene glycol, vegetable glycerin, and other ingredients. The liquid is heated to create an aerosol that the user inhales."

Based on the above alone, dry herb does not qualify as they are also stating that the material needs to be a liquid.

 

[hillbill]

I ordered from TVape last week, glad I did as they will not ship to USA until further notice, today.

 

[Farid]

I get what you're trying to say. Aerosol is an abbreviation for Aero-solution.

So saying aerosolized solution is redundant.

But there are lots of redundant phrasings in our language: Cease and desist, Consensus of opinion, etc.

 

[flammy]

I get what you're trying to say. Aerosol is an abbreviation for Aero-solution.

So saying aerosolized solution is redundant.

But there are lots of redundant phrasings in our language: Cease and desist, Consensus of opinion, etc.

That is a legal doublet. This is not the same. But again, there is this:

E-Cigarettes, Vapes, and other ENDS

Get an overview of FDA regulation of vapes, e-cigarettes, and other electronic nicotine delivery systems. You can also find statistics about current use.

www.fda.gov

 

[florduh]

I think I figured out how to save DynaVap. They just need to market "the click' differently. Now, "the click" lets you know to really turn up the torching. You see, "the click" is just there to let you know the Vapcap has reached a temperature where dangerous vapor is being released. If you keep torching after that click, you'll eventually reach safe, government-approved combustion temperatures.

I purchased dab tools from Amazon recently without issue. But I think I've had my account long enough that it's mathematically impossible for me to be under 18.

 

[Shit Snacks]

Few days ago when buying half inch pipe screens from Amazon (for Bowle, not bowl or bowel) , they forced me to verify my age with an ID number, I chose to type in my drivers license number. When I ordered more screens yesterday, no pop-up age verification. Assume you get age verified once there. They could easily handle the regulatory state by state nonsense. They have the technology, they can build an online vape shop, bigger, better than before

Woah I've never seen that age verification garbage from Amazon, and for fucking steel mesh screens no less! Absolutely absurd

 

[Tranquility]

As to the wordsmithing, here's a case where the issue was in regards to liquids with no nicotine in them and if they can be a "tobacco product" under ENDS using the deeming rule. (Among other things.) It might give guidance to some on how to thread the needle and how the courts will decide things.

NICOPURE LABS, LLC v. FOO | 266 F.Supp... | 20170724683 | Leagle.com

MEMORANDUM OPINION AMY BERMAN JACKSON United States District Judge. An electronic cigarette or e cigarette is an electronic...20170724683

www.leagle.com

 

[flammy]

As to the wordsmithing, here's a case where the issue was in regards to liquids with no nicotine in them and if they can be a "tobacco product" under ENDS using the deeming rule. (Among other things.) It might give guidance to some on how to thread the needle and how the courts will decide things.

NICOPURE LABS, LLC v. FOO | 266 F.Supp... | 20170724683 | Leagle.com

MEMORANDUM OPINION AMY BERMAN JACKSON United States District Judge. An electronic cigarette or e cigarette is an electronic...20170724683

www.leagle.com

This isn't a matter of wordsmithing. The Court in this instance looked at the FDA's intent and reasoning behind its oversight over liquids that did not contain nicotine. The Court found that it was within FDA's purview to have regulatory oversight over those liquids because the Court found that "the FDA has plainly stated that the rule does not cover e-liquids that do not contain, or are not derived from, nicotine or tobacco, unless those liquids are reasonably intended to be used with nicotine-containing liquids."

This said, this case also provides further support that dry herb devices are not considered an ENDS:

"An electronic cigarette, or "e-cigarette," is an electronic nicotine delivery device, comprised of a liquid, an atomizer or heating element that heats the liquid to create a vapor, and a battery that powers the heating element. Most liquids on the market contain nicotine."

I realize that the above says electronic cigarette rather than ENDS but the Opinion further defines an electronic cigarette as an ENDS: "electronic cigarettes, or electronic nicotine delivery systems ("ENDS") would be subject to the same set of rules and regulations that Congress had already put in place for conventional cigarettes."

At this point, I'm just beating a dead horse. I think we will all see what is allowed and not allowed shortly as we can look to the bigger manufacturers of electronic herb devices and what their shipping policies look like later this month. Great discussion and I really hope that everything works out for concentrate devices too. I think when the dust settles, most of those of should be good to go and viable arguments for exclusion can be made for desktop concentrate devices at least.

 

[Ramahs]

I think this is where some of the problem comes from. The dichotomy of what is today and what was yesterday.

Yesterday, propane and propane accessories were sold by artists or other one-off people who sold to customers who knew what they wanted. Today it is a business where grown-up people get capital and hire others to create a legal product for the free market.

This is one of the costs of legalization.

It's great to call something a propane accessory when you're selling a couple to friends or propane connoisseurs. A serious person in a real job where others depend on you, you might run that by an attorney first.

That's okay. I'm content continuing to buy from the small private hand-made boutique propane & propane accessories guys. I have much less interest in the mass-market stuff anyway.

 

[ChilledAsian]

 

[ProfessionalHandJob]

My favorite part is how they say "Is it banned? No." in the beginning, and then go on to say that it is banned over and over.

 

[RustyOldNail]

Thanks, seems like a bit more then a “nothingburger”.