I'm not sure that's exactly correct.
--Judge Leon said the FDA could not regulate them as drug delivery devices
--The FDA expressed concern that electronic cigarettes would then go totally unregulated
--Judge Leon suggested that the FDA could regulate them as tobacco products.
But until the FDA deems them to be tobacco products (deeming regulations) they are not YET tobacco products.
That's the way I've always understood it anyway.
But I could be wrong.
That was the point of my last post, it shows where the FDA say that they are not currently covered... until the regulation is final.