Legislators Say E-Cigarette Companies Are Bound by an Agreement Reached Before They Existed


Office of Dick Durbin

Sixteen years ago, the leading tobacco companies resolved state lawsuits against them through a Master Settlement Agreement (MSA) that included restrictions on advertising and promotion as well as payments totaling more than $200 billion over 25 years. Last week three members of Congress—Sen. Dick Durbin (D-Ill.), Rep. Henry Waxman (D-Calif.), and Rep. Frank Pallone (D-N.J.)—argued that the MSA should be retroactively revised to cover electronic cigarettes, which were not marketed in the United States until 2007. You may wonder: How exactly would that work? It is a question to which the three legislators, all of whom have law degrees, evidently devoted no thought whatsoever.

In a letter to the 29 state attorneys general who last August urged the Food and Drug Administration to severely restrict e-cigarette advertising and marketing, Durbin et al. suggest "classifying e-cigarettes as cigarettes under the Master Settlement Agreement," which they claim "would stop the e-cigarette makers from marketing their products in ways that are appealing to kids." This proposal has at least two fatal flaws, which may explain why the attorneys general have never attempted it, even though the idea has been floated before.

First, as Michael Siegel notes on his tobacco policy blog, the MSA defines a cigarette, in part, as a product that contains tobacco. E-cigarettes do not contain tobacco. Durbin et al. argue that they sorta do, "because their key ingredient is nicotine, which is produced from tobacco leaves." By the same logic, THC is marijuana, quinine is cinchona bark, electricity is coal, milk is a cow, and maple syrup is a tree.

But never mind that. The other crucial problem that Durbin et al. seem to have overlooked is that the Master Settlement Agreement is, as the name implies, an agreement, meaning it is binding only on the parties that signed it. The MSA cannot possibly be applied to companies that not only did not agree to it but did not exist when it was drawn up.

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  1. We noticed you haven’t signed the revised MSA. Nice corporation you have, shame if something should happen to it.

  2. There is no way that even with the most liberal interpretation that this could be legal.

    Not even Darth Vader would alter a deal this way.

    1. It’s what Lando deserved for having verbal agreements in the first place.

      1. Nonsense. The exact terms of the arrangement were all stored in Lobot’s databanks.

      2. There is no paper in the Star Wars Galaxy.

        1. Not even chamfered paper like in Battlestar Galactica?

        2. I may have overstated the case, from wookiepedia:

          The rulebook for the first edition of Star Wars: The Roleplaying Game stressed that “there is no paper in the Star Wars universe” and that the inhabitants of the galaxy exclusively used electronic means of data storage. In addition to the use of paper in publications, such as Assault at Selonia, this attitude towards the use of paper in the Star Wars universe seemed to relax by the time that the rulebook for the game’s second edition was published. It stated that paper was “rarely, if ever used” by the galaxy’s inhabitants.

    2. You forget about the FYTW Clause. It’s the government’s all-encompassing solution to just this kind of problem.

  3. THINK OF THE CHILDRENZ!!!!11!1!!11


    2. Thanks for reminding me, its time for shift change at the mines.

      1. You have shifts?

        Quit coddling the orphans, dammit! It only gives them ideas.

  4. Ah, class action law: where the lawyer class takes action to loot the living shit out of anything they can get their hands on.

  5. THC is marijuana

    Well, it is a schedule 1 substance.

  6. They signed it. They signed it when they came into existence as part of their social contract business license.



    1. What are you, a kitten?


        1. Oh yeah? Well I’m a Keds Thriller


            1. Definitely a kitten


                1. THREADKITTEN IS NOT A KILLER.

                  Nor a KILTER.

  8. are smokers exempt from the Obamacare individual mandate? because the justification for the MSA was that states had to pay for smoker’s health care. aren’t their premiums covered in the price per pack?

    1. The justification for a law seldom equals the reason the law was passed.

      1. In this case, for instance, the justification for the MSA was to reduce smoker’s health care, and the best way known right now to do that is hand out free e-cigs.

  9. The MSA cannot possibly be applied to companies that not only did not agree to it but did not exist when it was drawn up.

    Apparently, someone isn’t familiar with the FYTW clause.


  10. Can they prove the nicotine comes from tobacco? Several species of plant contain amounts of it (admittedly, trace amounts but still…).

    1. On average, 9 kg (20 lbs) of eggplant contains about the same amount of nicotine as a cigarette.

  11. For over, I would love to see someone ask them “So what?” when they get all red in the face at the thought of someone using an e-cig, or smoking for that matter.

  12. Interesting. There are only 6 companies (granted, all the bigs) that signed that thing. Its written as if it only applies to them.

    What has been the story with all the small cigarette/tobacco companies that didn’t sign, anyway?

    1. See “subsequent signatories” and NPMs

    2. Interesting.

      Reading between the lines, cigarette companies can opt into the settlement to avoid being sued by the state AGs, so most have.

      What a frickin’ strong-arm scam.

      It does show a path for sticking it to the vaping companies, though. Just allow them to join the settlement in order to avoid getting curbstomped by the state AGs. I would imagine that most would buckle under, just because they aren’t multi-billion-dollar companies who can go toe-to-toe with the states if they want.

  13. The entire tobacco settlement should be thrown out, not illegally extended to non-tobacco products. This settlement was imposed by fraud and coercion, and is nothing more than a tax on tobacco consumers, who are paying multiple times the value of their chosen products in taxes. And the moron politicians who are pushing this need to be thrown out as well; anyone crooked enough to lie like this, or stupid enough to believe it, is unfit to hold public office.

    1. What? It’s totally legit for the chief law enforcement officials in all of the states to form a cartel and implicitly threaten companies. Why, they were just following the model set by the federal government!

      1. Which part of the criticism. The states are not supposed to have agreements between each other outside of the framework of the federal government, one of them is redundant.

    2. Very true, it was akin to armed robbery. Also, while there may have been some justification for the early lawsuits, there seems to be none now, or for the last 40years or so: anyone who says they did not know smoking may give rise to health problems today is simply lying.

  14. The MSA cannot possibly be applied to companies that not only did not agree to it but did not exist when it was drawn up.

    “I hear what you’re saying. What if we did apply it though?”

  15. Reminds me of that mysterious “Social Contract” I keep hearing about.


    1. I think the next time the left-right troll alliance starts derping on some more about “the social contract” I will just post that link instead of fruitlessly engaging them.

      1. You are free to do what you want as long as you don’t infringe on the rights of others.

      2. Wait.

        No you’re not.

  16. Bound by an agreement that was reached before we existed? You mean like the Constitution?

    1. The Constitution only binds the government. Or at least it would, if it was actually followed.

  17. Roll with them punches dude.


  18. Good to see Dick took a break from his busy tv schedule to do what he does best, be a dick.

  19. US Constitution. Article 1, Section 9 No Bill of Attainder or ex post facto Law shall be passed.

    Remember Clinton’s retroactive tax increase? It violated the above line of the Constitution.

  20. Durbin et al. argue that they sorta do, “because their key ingredient is nicotine, which is produced from tobacco leaves.”

    MSA can not apply at all.
    “E-cigs” have no ingredients. They can be (and are) used without any nicotine whatsoever.

  21. Damned plebs. Always finding ways to thwart their better’s cunning plans.

  22. Congress is used to ‘changing the deal’, and thinks that’s a normal way of doing business.
    Well, here’s a change: Waxman’s gone after the end of the month, Pallone will remain a member of the House Minority Caucus, and Durbin joins the Senate Minority.
    The deal will not be changed.

  23. I’m confused… is that a new high or low for ‘stupidity in legalese’?

  24. ” By the same logic, THC is marijuana, quinine is cinchona bark, electricity is coal, milk is a cow, and maple syrup is a tree.” I love that! So saving it. I just hope the don’t ban e-liquid.

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