It Isn't Splitting Hairs. It is making a Fundamental Determination of whether or not a Law applies to something.
Nicotine is Not
tobacco. It can be Derived from
tobacco. Or you can say that Nicotine can be Found in
tobacco. But Nicotine is Not Tobacco.
So if a Law
only applies to a product that Contains tobacco, an e-Liquid that contain Nicotine would not be Subject to that Law.
But where it Gets Ugly is when a Law(s) reference a
"Tobacco Product". What Exactly is the Legal Definition of a Tobacco Product?
And the HUGE Question that has Lawyers/Legislators chomping at the bit is can a State use the Statutory Definition that the FDA has applied to include e-Cigarettes/e-Liquids as Tobacco Products, for the purpose of FDA Regulations, for the purpose of State Laws?
Many Argue that the FDA inclusion of e-Liquids that contain Nicotine derived from Tobacco Plants as Tobacco Products can be used by States. But also Argue that Nicotine that came from Other Sources or is Synthetic can Not. And the FDA's inclusion of Hardware or 0mg e-Liquids as Tobacco Products is Regulatory Overreach in the Purest Sense.
So it gets back to the HUGE Question. How far can a State apply the FDA's Definition of a Tobacco Product?
I believe that the Core of Tobacco Product Legal Challenges will be the wording from the FSTCA relating to "Derived From" tobacco.
