This is how the FDA deeming looks at things: (Pg 338)
For products that do not contain nicotine (i.e., no nicotine at detectable levels), the rule provides for an alternative warning statement, "This product is made from tobacco."
What throws some people off is the wording of the FDA with regard to WARNINGS.... so they read this:
The health warning provisions apply to "covered tobacco products," cigarette tobacco, and roll-your-own tobacco. The term "covered tobacco products" includes all newly deemed tobacco products except those components and parts that are not made or derived from tobacco.
They take that 'not made or derived from tobacco' and extend it to the FDA's definitions of "tobacco products" - that's a mistake :- )
That wording meant for warnings doesn't apply to the definitions of tobacco products - some of which are stated below: (my emphasis on underline, bold, color and font size)
(pg 162)
A few comments expressed concern that the rule would create incentives for manufacturers to separate nicotine-containing components from nonnicotine-containing components to evade regulatory requirements.
(Response) FDA understands these concerns. However, this deeming rule covers tobacco
product components and parts intended or reasonably expected to be used with or for the human consumption of a tobacco product.
(pg7)
This final rule has two purposes: (1) To deem all products that meet the definition of "tobacco product" under the law, except accessories of a newly deemed tobacco product, and subject them to the tobacco control authorities in chapter IX of the FD&C Act and FDA's implementing regulations;
The final rule defines "component or part" and "accessory" to provide additional clarity as to which products are subject to FDA’s tobacco product authority. With respect to these definitions, FDA notes that "component" and "part" are separate and distinct terms within chapter IX of the FD&C Act. However, for purposes of this final rule, FDA is using the terms "component" and "part" interchangeably and without emphasizing the distinction between the terms. FDA may clarify the distinctions between ‘component’ and ‘part’ in the future. Specifically, "Component or Part" means "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. The term excludes anything that is an accessory of a tobacco product."
The following is a nonexhaustive list of examples of components and parts used with electronic nicotine delivery systems (ENDS) (including ecigarettes): e-liquids; atomizers; batteries (with or without variable voltage); cartomizers (atomizer plus replaceable fluid-filled cartridge); digital display/lights to adjust settings; clearomisers, tank systems, flavors, vials that contain e-liquids, and programmable software.
This final deeming rule deems all tobacco products as they are defined in section 201(rr) of the FD&C Act, except accessories of newly deemed products, but including components and parts as defined in this rule. The wires, screws, and silica meet the definition of component or part, as they are an assembly of materials intended or reasonably expected to be used with or for the human consumption of a tobacco product and are not accessories of a tobacco product.