Thanks, Kent. I hadn't read it.
The author seems to believe that the FDA could effectively move the grandfathering date without a statutory amendment. Of course, I'd prefer an
extensive statutory amendment because there was no consideration given to e-cigarettes when the statute was written. But it might be impossible to get it
through Congress.
Re: bold.... but he writes:
"It does not appear, however, that the FDA has the legal authority to change the grandfather date set forth in the
tobacco Control Act for the newly deemed products."
Then...
"Rather, the more likely scenario is that the agency will use its “enforcement discretion” to adjust the requirement for e-cigarettes to prevent the collapse of the market."
I think he may be wrong about that - I'm not so sure they want to prevent the collapse of the market
But his estimates about how long it would take to do applications and either accept or reject them is likely true. So the market won't collapse immediately and in that interim a lot could happen. Just for example, percentage smokers could drop to 15% or lower. This may have an effect on legislators or even on people within the public health community. More positive studies on ecigs will likely be published (but, so will negative studies occur). Other countries, EU, UK could either 'see the light' or turn off the lights - this could affect what the US does. And maybe most important, vapers get better organized and grow in numbers and put more pressure on Congress or change it's makeup.
And as far as the commenting process is concerned, your "no consideration given to e-cigarettes when the statute was written" is important to emphasize. We've had discussions about that regarding how it is close to an ex post facto aspect, although not technically correct. But it is a 'blind' regulation in that respect and a preemption before all known information is known - by their own words.
... just kidding. I have no interest there but condolences.... 
