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Why the Vaping Industry Should Utilize Litigation as a Deterrence (Part 1)

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Fred Kelly Grant: Trial Lawyer and Coordination expert

After yesterday’s announcement of the FDA’s willingness to work with the vaping industry to develop mutually beneficial regulations, I feel a great deal of vindication in the months that the EVCA has been working with Hartland, WI city officials and Washington D.C. regulators. While many have sought to marginalize and impugn our efforts at Hartland, WI and with the EVCA, we know for a fact we played a large part in the FDA’s decision.

But now for the rub! Many of the same voices trying to marginalize EVCA’s efforts are now calling on advocates to step up their game because of their fear that States will step up their game with greater regulation through ordinances.

Just as the coordination process seems to be wildly successful in delivering a big win for vapers, the vaping industry faces doom from the flavor banning ordinances that just passed in San Francisco and Oakland.

Such banning activities are of course beyond the scope of coordination because it is action by the local government itself that is doing the damage.

There is only one effective way to challenge such local actions: litigation to stop its implementation and to serve as a deterrent to prevent passage of bans in other jurisdictions.

Organized bodega owners had planned a lawsuit to challenge the San Francisco ordinance but dropped the plans at the 11th hour just as EVCA was prepared to announce its support.

Did they back away because of threats by the county Supervisors to their licenses and permits, or did they back away because a vaper organization vociferously opposed litigation? The Vaping advocacy groups encouraged vapers to put all their effort into grassroots work in favor of a referendum on the ordinance. Some advocacy groups say it is important to keep talking to the county Supervisors, keep the lines of communication open and work toward success of the referendum. And, finally they say litigation is the wrong course because it is costly and there is a chance of losing, thus setting a bad precedent.

That is flawed thinking. It is not a winning attitude.  If one wants to consider the vaping business as a game of chance to be played out as a gamble then that thinking is high risk, but it is okay for high stakes rollers.   But from the standpoint of WINNING, it is ONE HUNDRED PERCENT WRONG.

Just kick your mind into gear for one second and consider:  did the threat of a referendum deter Oakland from jumping on the bandwagon as soon as it appeared there would be no lawsuit against San Francisco?   Oakland had tabled its ordinance, but within days of the announcement of the referendum packet being filed, Oakland’s council bought up the ordinance and passed it. So much for the fear that a city-wide referendum will change a thing.

As an old trial lawyer, I can tell you that there is no stronger deterrent in the world than the threat of litigation. It is a dynamic that drives decisions daily in the conference rooms of big corporations and big government organizations. How many times over the last fifty years have I heard “we must do this, if we don’t we’ll get sued.” And how many times have my clients benefitted from that fear of litigation? In Browning’s immortal words “let me count the ways”.

Look to the experience of the NRA and the way it has used lawsuits and the threat of lawsuits to prevent passage of anti-gun ordinances and to further the interests of its members and their supporters. It threatens litigation and people know it means it.

Look to the experience of the Natural Resource Defense Council and like-minded environmentalist groups.  Through litigation and the changes of policy resulting from the threat of litigation, these organizations took control over land and water decisions by federal agencies.  Two anti-livestock grazing organizations, Western Watersheds and the Committee for the High Desert, virtually took control of all grazing decisions from the Idaho office of the Bureau of Land Management in the early 1990s.  By filing lawsuits, they managed to virtually control decisions by that agency.  As a leader of the coordination effort for the Owyhee County Board of Commissioners in those early years, I heard repeatedly from district managers “If we do that Western Watersheds will sue us.”  Only when we got coordination established and could make our own threats of lawsuits over failure to coordinate we realized very quickly we could influence the BLM to do its duty of allowing livestock to graze healthy rangelands.

As a prosecutor, I personally used the deterrent impact in spurring pleas in homicide cases. Often, I advised defense counsel that I would pursue capital charges unless the defendant wanted to plead guilty and avoid the possibility of a death sentence.  In every case that I did that, the defendant pleaded guilty even though the Governor of Maryland had openly said that during his administration there would be no executions and the “doors to the death chamber were sealed.”

Defendants and their counsel simply did not want to risk it.

In my personal career I have seen cities, counties and states act or delay action because of the threat “they will sue us if we don’t.”  I served as counsel to two governors of Idaho, and as deputy clerk to a large county where various special interest groups had learned how to threaten us with lawsuits.  It was sometimes all I could do to persuade the governing authorities to do what was right under the law when they felt the threat of a lawsuit challenging their action.

Special interest groups have long ago learned the value of threatening a good lawsuit.  It seems strange to me that vaping advocacy organizations would urge vapers to just fade into the woodwork, accept the fact that their freedom of choice has been taken from them, and then hope that an electorate supports them next year in a referendum.   The “honey badger” certainly wouldn’t accept such action, would he?  The advice to quietly ignore the court house while feebly trying to talk at the City Hall reminds me of the segment of Walt Kelly’s comic strip Pogo where the characters have undertaken a search of the swamp to detect any enemies that might be lurking.  Pogo finally emerges and announces, “We have met the enemy and he is us.”

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