The FDA claimed the devices were an unapproved drug-delivery device combination used to treat the disease of smoking.
I am using it to treat smoking. And it's working. I can't understand why they would have a problem with that.
FDA has a problem with it because they aren 't in control of things. If something is being used to treat a disease, they want to regulate it in the same way they regulate pharmaceutical products: Keep it off the market until the manufacturers conduct exhaustive testing to proove the products are "safe and effective". This process costs up to a billion dollars and can take years and years.
Healthcare Economist · Cost to bring drug to market: $802m
The authors found that the time from the start of clinical testing to marketing approval was approximately 90.3 months.
Even if a million of us said, "It's working," that's not good enough for the FDA because their standard New Drug approval process has not been followed.
All of the appoved "smoking cessation" products are geared toward the user giving up nicotine altogether. We users claimed that we were using it "recreationally" to REPLACE smoking, not to treat nicotine addiction. Therefore we did not want it regulated as a drug-delivery device combination, because we did not want the products removed from the market for years and years.
The FDA argued in court that it would be dangerous to leave the products totally unregulated. So Judge Leon looked at the wording of the Family Smoking Prevention and Tobacco Control Act (which was passed while the judge was considering the arguments in the SE & Sottera v. FDA case). In his opinon, Judge Leon the FDA that if it wanted to regulate the products, the agency could do so under the Tobacco Act because the products met the definition of "tobacco product" by being "derived from Tobacco."
http://www.casaa.org/files/SE-vs-FDA-Opinion.pdf
The Agency continued to argue that e-cigarettes are not tobacco products, but after their two appeals were denied, they announced that they would do so.
Regulation of E-Cigarettes and Other Tobacco Products
By the way, the FDA is the only entity that has defined "smoking" as a disease. All the diagnostic manuals talk about "nicotine addiction" or "tobacco abuse" as the disease.
So even though it is absolutely true that the product works well to help people quit smoking, vendors are not permitted to say so, because that statement will be interpreted as a medical claim. BTW, Judge Leon also stated that if an e-cigarette manufacturer wanted to make medical claims, they could submit a New Drug Application to the FDA.
So it would be possible for a product to have two (identical) versions, for the purpose of advertising and marketing: One version would be a "tobacco product" advertised for recreational purposes. The other version of the product would be advertised as a medical device after it went through the approval process. For that product, the vendors would be able to say that it helps people to quit smokng.
The only problem with this scenario is that technology evolves quickly. If Ruyan had begun by filing a NDA with the FDA and started conducting all the required tests, back in 2007, they would not have been able to make any changes to the product during those years, or they would need to start their testing all over again. For the prescription version, we would be stuck with the old Model RN 4081 that has leaky cartridges, batteries that only last a few hours on a charge, and that become unchargable after 3 to 6 months.
So if a manufacturer started out with the two hypothetical versions of an e-cigarette that I postulated above, by the time the medical device version was approved, it would be old technology, blown away by the recreational version.