I do not believe that an OPINION is the same as a RULING/ORDER.
I have been trying to point this out for days now. In Judge Leon's OPINION, he states that there is considerable weight to NJOY's case that e-cigarettes are NOT drug devices nor have they been marketed as smoking cessation devices. Judge Leon goes on to state that the FDA cannot consider e-cigarettes as drug devices but that the FDA CAN regulate them as tobacco products under the Tobacco Act. AGain, an opinion is NOT a ruling as far as I know... it's just an opinion on which they base the merit of whether to hear the case that is before them. In this case, he found it did have merit, it was heard and judged upon in the court and the rulings made that the FDA cannot sieze shipments on the basis that the FDA is considering them drug devices.
Judge Leon further states that classifying them as drug devices is NOT out of the question, but that the FDA would have to take to Congress to get that classification legally recognized.
All that being said... the NY Bill reads as such
"TITLE OF BILL: An act to amend the public health law, in relation to prohibiting the sale of electronic cigarettes to minors and in relation to prohibiting the distribution or sale of any item containing or delivering nicotine that is not defined by law as a tobacco product or approved by the United States food and drug administration for sale as a tobacco use cessation or harm reduction product emphasis added
PURPOSE OR GENERAL IDEA OF BILL: This bill seeks to ban the sale and distribution of items containing or delivering nicotine that are not currently classified as tobacco products or approved as tobacco use cessation or harm reduction products by the U.S. Food and Drug Administration (FDA) and also to prevent minors from purchasing these products.The bill would amend the Public Health Law by amending Section 1399-cc to include electronic cigarettes in each subsection and defining an electronic cigarette in subsection (d).
SUMMARY OF SPECIFIC PROVISIONS:The bill would also amend the Public Health Law by adding a new Section 1399-mm-1. The section provides that products containing or delivering nicotine and intended for human consumption shall not be distributed or sold unless the FDA has given approval. The section further provides that the attorney general may issue an order compelling compliance with this provision and further grants the court the ability to impose a civil penalty for violations of this law."
e-cigarettes are NOT legally classified as EITHER a tobacco product nor an approved tobacco cessation or harm reduction product. And if you pay attention to the wording, if it does NOT fall into either of these categories, then it can be banned.
I think the best way to proceed is for the manufacturers to petition to get the classification of tobacco product ASAP.