Why Vapers are like Lobsters

ReaperYes it’s the harbinger of doom again …. I will say this and you may take it as you will …. I hope every optimist is right but unfortunately I don’t share their optimism.

This all reminds me of a lobster community being asked to get in a pot.

lobsters

 

The lobsters all say “Hey its not as bad as we thought …. the water is a nice temperature.”

One lobster says “Look the pot lies on a heat source. the heat can be turned up !!!!”

The lobsters all shout “Hey we have been promised this is ‘light touch’ and they won’t turn up the heat!”.

To the annoyance of the other lobsters one lobster says “If they intend it to be light touch and have no intention of turning up the heat why put the pot on a possible heat source?”

I question why the UK government is introducing broad legislation yet assuring light touch.  Why not just introduce narrow legislation that is light touch (defined) and can’t be ramped up by broader interpretation?

I believe the UK government (Britain having the most active vapers in Europe) decided we need to be brought to the boil gently, unlike nations with less active vapers who can be dropped straight into a boiling pot.

So I advise, rather than relying on assurances from governments or vaping experts, look at how the legislation could be interpreted and not how the Government presently tells you it will interpret it.

At the end of the day … only the government can decide how the legislation will eventually be enforced, and only the courts (not vaping experts) can ultimately rule on the interpretation.

Yes my fears may be wrong but the ‘expert’s’ optimism may also be wrong…

Rather than looking for assurances from the government, MHRA et al in how they will enforce this legislation we should be fighting to have the legislation written as narrowly as possible (with solid definitions for words with several different meanings) and in a way so it can’t become more draconian merely through the government using a more draconian interpretation !!!!!

The problem I have found with the proposed legislation is that it is just so broad and ambiguous (it can even refer to sex at one point) it is difficult to stay focused as there are so many possibilities for different interpretation, which wouldn’t be the case if there was just a single bad point.

I hear people arguing ‘advertisement’ and its interpretation.   

The proposed legislation defines advertisement as ‘Commercial Communication’,  so advertisement throughout the legislation has to be considered as ‘Commercial Communication’ and not ‘Advertisement’ ….. The problem is that ‘Commercial’ and ‘Communication’ are very broad terms and the legislation doesn’t define those words either separately or combined.

So why bother with interpreting ‘advertisement’?   As I said above it is not relevant in this proposed TPD legislation.  If ‘red’ is defined as blue in legislation, any time the term ‘red’ is used it means blue and not red, at least for the purposes of that act.

Some have raised the fact that ‘Commercial Communication’ has been defined in other legislation,  but that legislation defines those terms only for the purposes of that specific act..

There was the possibility for the proposed TPD legislation to refer to another act that defined ‘Commercial Communication’, BUT IT DIDN’T   …. The law doesn’t expect interested parties to search through all other previous legislation and all relevant case law to understand a definition in new legislation.  So, however unlikely it may appear, a broad term (undefined) can be interpreted in anyway that it can be interpreted:   any of those interpretations are valid and can only be disputed by a court of law.

Although I have stated ‘Commercial Communication’ was defined  in previous legislation and that that definition only applies for the purposes of that act, it is interesting to look at that definition as it is at least one way ‘Commercial Communication’ could be defined in the new TPD legislation by the Government.

A point: the fact that previous legislation considers it important/necessary to define ‘Commercial Communication’ is a strong indicator that it should be defined and is another question mark over the fact that the proposed TPD legislation doesn’t define ‘Commercial Communication’ !!!!

The Electronic Commerce (EC Directive) Regulations 2002

Interpretation
2.—(1) In these Regulations and in the Schedule—
“commercial communication” means a communication, in any form, designed to
promote, directly or indirectly, the goods, services or image of any person pursuing a
commercial, industrial or craft activity or exercising a regulated profession, other
than a communication—” (continued below)

As with the legislation above I also consider that ‘Commercial Communication’ could refer to any communication that directly or indirectly refers to someone’s commercial product, such as an electronic cigarette, if that communication promotes/recommends that product.

What emphasizes that ‘commercial communication’, as seen within ‘The Electronic Commerce (EC Directive) Regulations 2002’, includes persons unrelated to the product and/or those with no financial interest, is the fact that they are particularly  excluded. (The proposed TPD legislation has no such exclusions). If there was no danger for such persons to be captured within the term ‘commercial communication’, then why the need for the exclusions?

The Electronic Commerce (EC Directive) Regulations 2002 (exclusions continued directly from the definition above)

other than a communication—
(a) consisting only of information allowing direct access to the activity of that
person including a geographic address, a domain name or an electronic mail
address; or
(b) relating to the goods, services or image of that person provided that the
communication has been prepared independently of the person making it (and
for this purpose, a communication prepared without financial consideration is to
be taken to have been prepared independently unless the contrary is shown);”

I repeat the fact that these inclusions and in particular (b) is deemed necessary shows that without that exclusion persons independent of the product and without financial interest could be caught in the definition for “Commercial Communication” !!!

NO SUCH EXCLUSION is included in the proposed TPD legislation!!!

A lawyer can write a 1000 page draft and a single word can make it to your advantage or against …… I really lose the will to live trying to point out the dangers contained in the “Advertising” section of the UK’s proposed legislation …. Control information and you control everything in this modern world ……

 I can’t foresee the future but just one of many dangers, for an undefined ‘Commercial Communication’ defining ‘electronic cigarette advertisement’ is that any verbal or written communication that discusses a commercial product will breach the proposed legislation if the Government so wishes …… As I said, I don’t know the future, but when this Government uses such  broad undefined words to replace “Advertising” I become very suspicious.

It amazes me that some vapers consider that the Government is softening with their initial ‘light touch’ approach.  Ask yourself one question:  had they came in immediately with a ‘hard touch’ would vapers have fought harder as the implementation of the legislation loomed?  Will some vapers now relax until the end of the 6/12 months grace period looms?

The difference is that prior to the enactment of the legislation the proposed legislation can be challenged but just prior to the 6/12 month grace period the legislation will be LEGISLATION.

The ‘light touch’ on ‘advertising/Commercial Communication’ is pretty obvious …. introducing censorship when people have a voice is difficult (if civil liberties groups got wind, regardless of who the censorship was aimed, at there would be uproar).  But once the legislation has been enacted it is too late …. and if they do go on to act as draconian as the legislation permits, without communication, who do you tell?  Or, more importantly, HOW do you tell them????

I have a big mistrust of governments and with good cause. It has been nurtured from many years dealing with two governments,the UK and the Netherlands, through the European Commission of Human Rights.
This is why I notice these tricks – but hey, everyone enjoy the party for now
.

A final and important note …. Now is the wrong time to be considering positive aspects of this bad legislation.

The time to look for loopholes and positive spins is after the legislation has been enacted.

We only have months to try to do something about this bad legislation, we have forever to live with it.

By Szaxe Gill

 

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3 thoughts on “Why Vapers are like Lobsters

  1. This article hinges on utter drivel and paranoia.

    Yes, ‘commercial’ and ‘communication’ are both words that mean many things. But put them together and you have something that’s well understood by anyone that has worked in marketing in the last 15 years. Why is it so well understood? Because unlike your assertions everywhere; ‘commercial communications’ were very specifically defined in EU law by The Electronic Commerce (EC Directive) Regulations 2002 – you even bloody quote the thing!

    EU regulations aren’t islands off on their own totally unrelated to everything else, they use common terms that apply across everything unless specifically needing something new.

    If you committed half of this energy to highlighting real issues you’d be a fantastic advocate for Vaping, but articles like this are ridiculous.

    Like

    1. I don’t see the relevance of how long anyone has worked in marketing? Such an argument wouldn’t hold up in court and doesn’t impress me.

      As regards The Electronic Commerce (EC Directive) Regulations 2002 it specifically states that the interpretation is for the purposes of that act

      “Interpretation
      2.—(1) In these Regulations and in the Schedule—
      “commercial communication” means”

      It does not state

      “Interpretation
      2.—(1) In future Regulations and in any Schedule or legislation—
      “commercial communication” means”

      Exclusions ARE NOT EVEN THE INTERPRETATION, exclusions are specific exclusions to the interpretation of a particular act.

      Basically the person drafting the law defines which interpretation of a term is relevant to a particular act he/she then goes on to exclude people/circumstances/etc that may be caught up in that particular definition.

      Szaxe.

      Like

      1. > I don’t see the relevance of how long anyone has worked in marketing? Such an argument wouldn’t hold up in court and doesn’t impress me.

        You completely misunderstand things. I didn’t say you had to be a marketer for 15 years, I said the Directive came into force in 2002, so anyone that has worked in marketing since then would be aware of what it is. Even if they only did a weeks internship they would command a masterful grasp of what commercial communications are – it’s that simple a concept.

        Things standing up in court? Literally no idea what you meant there.

        You don’t get it, fine – dont ever work in marketing, but stop trying to confuse others with your stupidity.

        Like

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