Contrary to what some people believe, the FDA cannot just "decide" they can ban or restrict something. They have to have lawful jurisdiction.
So basically, until some idiot says or does something that puts them under their jurisdiction, you can sell anything you want as long as you don't claim it does anything or someone makes a credible complaint about said product.
A perfect example of how to do this correctly would be "herbal" pills for "male enhancement". A claim such as this is very vague; it doesn't define "male enhancement" and doesn't claim to treat, cure or diagnose anything.
So, up until recently, no one selling eCigs with a brain in their head sold or marketed them for Smoking Cessation. After Winter CES this year tho, the product got wider recognition and chinese factories started pumping them out. Someone could start an "eCig company" in as little as 60 days, complete with their own "brand" for probably less than 10K USD at this point.
With increased competition and a desired quicker RoI, it was inevitable that *someone* would make claims about the products that were untrue to get bigger/faster market penetration, but as the industry itself had no standards body, trade association, etc in place to separate, distance sanction or anything else...it was like a mini-boom market.
I mean, think about it. For less than a car, you too could start a legal business selling an addictive drug! It is the American Dream
Smoking Anywhere crossed the line in their retail establishments, not only with their sales tactics and poor customer service (causing ire, pissing off customers...who complained) but additionally with their marking claims. Smoking Anywhere is known to market eCigs as a Smoking Cessation device/methodology/program.
Uh-oh.
So yeah, oldtechno, if you want to, right now, bottle water with a twist of lime and some cloves and maltose, call it "Tek-Formula2/O" and say it "focuses energy in a refreshing new way!" and label the contents according to FDA regulations and standards, you are free to sell it to anyone that buys it.
In the case of Tek-F2/O as a food/"dietary supplement".
When you decide to try to jump your market penetration and claim that it can "reduce cancer risk" then you are the FDA's b*tch...especially if you forget to mention that you cannot prove it
-K