Drugs are defined under the FD&C Act to include “articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease,” as well as “articles (other than food) intended to affect the structure or any function of the body.” Medical devices are defined in very similar terms. The so-called “intended use” of an item is therefore critical to FDA’s ability to regulate drugs and devices. An article’s intended use is determined by FDA based primarily on the claims that are made about the product.
The term “tobacco product,” by contrast, is defined to include “any product made or derived from tobacco that is intended for human consumption.” FDA’s authority to regulate tobacco products, therefore, depends first on the product’s physical makeup. The definition of “tobacco product” excludes any item that falls within the definition of a drug, a medical device, or a combination product― for example, any item whose “intended use” involves the diagnosis, cure, mitigation, treatment, or prevention of disease.
As discussed above, the definition of “tobacco product” explicitly excludes products that meet the legal definition of “drugs” or “devices.” In Sottera, Inc. v. FDA, the U.S. Court of Appeals for the D.C. Circuit took up the question of whether electronic cigarettes containing nicotine derived from tobacco fall within the definition of “tobacco product” (and are therefore regulated by CTP), or fall within the definition of “drugs” or “devices” (and are regulated by CDER/CDRH).
The answer, the court ruled, depends upon the intended use of the product. Nicotine- containing products as “customarily marketed” (including traditional cigarettes) ― provided they are not also marketed for what the court described as “therapeutic” purposes ― can be regulated by CTP. Nicotine-containing products that are marketed for “therapeutic” purposes cannot be regulated as tobacco products, but can be regulated by CDER/CDRH as drugs/devices. Because no evidence had been presented to the court that the electronic cigarettes at issue in the case had been marketed with “therapeutic” claims, the court held that they could not be regulated as medical products.
Generally speaking, drugs and devices must be approved for a particular intended use in individuals. New or modified tobacco products are subject to different criteria that take into account the product’s impact on the health of the population as a whole.