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.