RJG--I would love to agree with you --I really would--but as Steve said the FDA is classifing the "thing" as a medical device and that falls in their scope of authority to ban absent registration and approval. So could you please give us a cite to where we can read that the FDA does not have the autority. I agree that these devices should be looked at as nothing more then a water pipe, etc., and ...
All you have to do is looks what's out there, and what is already defined as legal. It's all about the wording.
As for an entire KIT, atomizer, batteries, charger etc,
If you include a cart filled with HERBAL liquid, label the package as a herbal atomizer, it just became legal, within the existing classifications.
I don't even know if you'd have to include the herbal cart, but would be a good idea IMHO ;-)
It's when you promote/label the device as being an e-cigarette, this is where the legal problems are arising.
Example: If you import a ...., well, Drug paraphernalia are illegal. Statute, U. S. Code Title 21 Section 863 drug paraphernalia, makes it "unlawful for any person to sell or offer for sale drug paraphernalia; to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or to import or export drug paraphernalia."
Yet, importing/selling a Shisha water pipe or herbal vaporizer is just fine.
But, put a Cannabis leaf on the box, now it's illegal again.
If you SELL ir IMPORT the herbal vaporizer from the same shop that promotes Cannabis, now it became illegal again, lol, since there is an "inferred" use attached to it.
Call it a .... it's paraphernalia, if it's called a water pipe it's a tobacco smoking accessory.
Call it an e-cigarete, it's an unapproved medical device for the delivery of nicotine, if it's called a herbal vaporizer, now it's something else.
All about the wording, labeling, promotion, this is what defines a device as what it is under the law.