"Because neither act encompasses electronic cigarettes, FDA
contends that those products, at least as they are marketed by plaintiffs, are beyond the scope of Brown & Williamson Tobacco and are therefore regulable as a drug or device under the FDCA. This argument is too clever by half.... FDA
's interpretation of "tobacco product" is not reasonable when considered in the context of the entire Tobacco Act. For instance, one provision of the Act specifically prohibits FDA
from "banning all cigarettes, all smokeless tobacco products, all little cigars, all cigars other than little cigars, all pipe tobacco, or all roll-your-own tobacco products." 21 U.S.C. § 387g(d)(3)(A). Yet another provision prohibits FDA
from "requiring the reduction of nicotine yields of a tobacco product to zero." 21 U.S.c. § 387g(d)(3)(B). That Congress would single-out "traditional" products for specific protection but use the broader term "tobacco product" when denying FDA
the power to eliminate nicotine yields suggests that Congress understood the term to encompass more than traditional tobacco products and that Congress intended to permit nicotine use, whether from unforeseen, non-traditional sources (like electronic cigarettes) or from well established, traditional sources (like regular cigarettes).
More importantly, it is apparent from Congress's broad definition of "tobacco product" that it intended the Tobacco Act's regulatory scheme to cover far more than the fixed array of traditional tobacco products at issue in Brown & Williamson Tobacco. Both the FLCAA and the CSTHEA only apply to "cigarettes," "little cigars," and "smokeless tobacco," which Congress defined with considerable specificity, yet the
Tobacco Act applies to "tobacco products," which Congress defined expansively as "any product made or derived from tobacco that is intended for human consumption." 21 U.S.C. § 321(rr)(l). Furthermore, Congress made clear that FDA's new jurisdiction over tobacco products applies, not only "to all cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco," but "to any other tobacco products" as well. Id. § 387a(b). Simply put, the Court cannot accept that Congress defined "tobacco product" in this manner when it knew all along that the only tobacco products beyond FDA's drug device jurisdiction were the traditional products governed by the FLCAA and CSTHEA
". Id. at 17-18 (U.S. Federal District Court, DC circuit).
Quoting this to these people would be of benefit as we should not assume that they know about the case let alone have read it so enlighten them.