In regards to today's Wall St. Journal article at
FDA Discusses Banning Online Sales of E-Cigarettes - WSJ.com
please note that the following statements in Stephen Drill's story were unsubstantiated rumors from unnamed source(s).
The Food and Drug Administration is considering a ban on online sales of electronic cigarettes, as part of a package of regulations the agency is readying for the increasingly popular devices, people familiar with the matter said.
As part of that effort, the FDA has discussed an online-sales ban to keep e-cigarettes out of the hands of minors and is looking at whether the minimum legal age for buying them should be 18 or 19, the people said. They said the agency is also reviewing television, radio and print advertising standards for the products.
The source(s) of these claims may have been FDA staff who was/were intentionally (or perhaps not) leaking it to Drill as a test balloon, or the source(s) may have been owners/execs/lawyers of e-cig companies that had a "listening session" with the FDA (perhaps e-cig companies that want FDA to ban Internet sales of e-cigs to increase their market share by eliminating competitors).
But the FDA has been discussing many different regulations to prevent cigarette smokers from switching to e-cigarettes since the agency conceded to comply with Judge Richard Leon's ruling (that struck down the FDA's unlawful ban of e-cig imports in 2009).
Among the potential e-cigarette regulations the FDA has considered/discussed include an Internet sales ban, television/radio ad ban, flavoring ban, e-liquid ban, and probably limiting the amount and concentration of nicotine in e-cigs. So what's been reported in today's Wall. St. Jrnl story is nothing new.
I don't know if FDA has the legal authority to ban e-cig sales (or advertising) on the Internet, as its been my understanding that only Congress has the legal authority to regulate the Internet.
I also don't know if the FDA has the legal authority to ban television or radio ads for e-cigs, as Congress authorized the Federal Trade Commission (FTC) with the legal authority to regulate the public airwaves, and it was the FTC that banned cigarette ads on television and radio back in 1970.
Unfortunately, I suspect that the only way to stop FDA from imposing an Internet sales/advertising ban/restriction or from banning e-cig ads on TV/radio is if e-cigarette company(ies) filed litigation against the FDA, which might not be able to be filed in federal court until after FDA gives Final Approval to the not yet proposed regs on e-cigarettes.
But I do know the FDA doesn't have the legal authority to establish 19 as minimum age for e-cigarette sales (or for the sale of any other tobacco products) because according to Section 906(d)(3)(A)(ii) of the TCA "No restrictions under paragraph (1) may -- establish a minimum age of sale of tobacco products to any person older than 18 years of age."
From 2004-2009, I campaigned to amend the TCA legislation to remove that clause so that FDA could ban the sale of cigarettes to all high school students (who are 18 during 12th and often 11th grade), although I don't support raising the minimum age for the sale of other tobacco products because they pose far fewer health risks.
