If the court buys this clap trap not only us but everyone is at the mercy of the government.Nicopure, while focusing on eliquid since that is what they sell, each count listed includes 'vaping devices and eliquids'.
http://www.fdalawblog.net/Nicopure Complaint.pdf
In the Right 2B smoke free lawsuit there is much discussion of hardware (42.,43, 113 and others - basically search "components" :- )... leading up to the counts but also within the counts:
http://www.khlaw.com/Files/27053_FDA_Deeming_Rule_Complaint.pdf
COUNT SIX
Violation of Administrative Procedure Act
Definition of "Tobacco Product" and Application to ENDS
....
112. Under the TCA, the term "tobacco product" is defined to mean, in part, "any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product." 21 U.S.C. § 321(rr).
113. In the Deeming Rule, FDA defines "component or part" as "any software or assembly of materials intended or reasonably expected: (1) To alter or affect the tobacco product’s performance, composition, constituents, or characteristics; or (2) To be used with or for the human consumption of a tobacco product." 21 U.S.C. § 1100.3. Components and parts are subject to regulation under the Deeming Rule. 81 Fed. Reg. at 28,975.
...
115. FDA considers a broad range of ENDS products to be regulated as "tobacco products" or "components or parts." These include software used to operate devices, batteries, atomizers, cartomizers, digital display/lights, tanks, and glass e-liquid containers. See, e.g., 81
116.
FDA intends to regulate these products despite the fact that they do not contain tobacco, are not derived from tobacco, and are not components or parts of an actual tobacco product. The Agency offers no rationale based on the definition of "tobacco product" or the legislative history indicating that such definition can be stretched so far as to capture these types of ENDS products (
e.g., merely because they are used to consume a tobacco product).
117. Accordingly, FDA’s application of the TCA’s definition of "tobacco product" to certain ENDS is unreasonable and unlawful under the APA. Thus, the regulation of such products should be enjoined in its entirety.
1. We are the government.
2. This is what we decided to do.
3. Any confusion,see number one.
The perfect circular argument.
Mike