Are e-cigarettes considered a tobacco product?

Author: Stefan H. Black, FordHarrison, LLP

Even though e-cigarettes do not contain any tobacco, some states (e.g., Colorado, New Jersey and Tennessee) and local governments have revised their existing anti-smoking laws to include e-cigarettes within the definition of a "tobacco product." Other state and local governments have developed specific laws that regulate e-cigarettes.

In 2011, a federal appeals court ruled that the Food and Drug Administration (FDA) may regulate e-cigarettes as "tobacco products," but not as a drug delivery device unless the product is marketed for therapeutic purposes (e.g., as a smoking cessation tool). This means that the FDA may:

  • Regulate the manner in which e-cigarettes are marketed;
  • Require e-cigarette devices to be registered;
  • Require e-cigarette manufacturers to list the ingredients in its products;
  • Implement good manufacturing practice requirements;
  • Impose user fees; and
  • Administer certain pre-market review requirements.

However, the FDA may not:

  • Ban e-cigarettes entirely; and
  • Subject e-cigarettes to its full array of safety testing; however, more limited safety testing is available.