The first time the Food and Drug Administration (FDA) moved to regulate electronic cigarettes, it tried to ban them. Last week it took a different approach that may ultimately have a similar effect. Much will depend on whether the FDA irrationally decides to treat e-cigarettes as a menace to public health or recognizes them as a lifesaving alternative to conventional cigarettes.
On the face of it, the proposed rule that the FDA published last week is much more accommodating than its 2009 attempt to ban e-cigarettes as unapproved “drug-device combination products,” which was blocked by the courts. This time the FDA is classifying e-cigarettes as “tobacco products.” That in itself is rather puzzling, since e-cigarettes do not contain any tobacco. They do, however, contain nicotine derived from tobacco, which is the court-endorsed legal pretext for FDA regulation.