... Can't have two different standards, it would smell of arbitrary and capricious, and make for a good court case.
...
Of course they Can. And Do.
Some Undefined and Non-Statutory Level(s) of Toxins is only Part of what the FDA uses in their Righteous Might to ensure the "Protection of Public Health" when it comes to Declaring an Edict on what
Tobacco Products will or Will Not be sold in the USA.
This is the Uphill Battle that e-Cigarettes face...
(4) Basis for finding
For purposes of this section, the finding as to whether the marketing of a tobacco product for which an application has been submitted is appropriate for the protection of the public health shall be determined with respect to the risks and benefits to the population as a whole, including users and nonusers of the tobacco product, and taking into account-
(A) the increased or decreased likelihood that existing users of tobacco products will stop using such products; and
(B) the increased or decreased likelihood that those who do not use tobacco products will start using such products.
[USC02] 21 USC 387j: Application for review of certain tobacco products
And it resides at the Core of a piece of Legislation that is Fundamentally Reliant on
Judicial Deference.
So a Manufactory can try to Jump over Arbitrarily set bars for Toxicity. And spend Millions and Millions on PPM Studies and 1 out of X Risk Analysis.
But if they Can't Satisfy some Ethereal Un-Quantified Values of both "A" and "B" in this portion of the FD&C Act above, its No Ticky - No Laundry.