if the ban doesnt go through then it would not be considered a tobaco product if it does then the tobacco companies can have the FDA approve it as a tobacco product after they fork out the money to have the tests done. am I right on this?
Well... it depends. If the FDA is given the winning ticket by Judge Leon that these are NRT's, then Pharm will get them. (Unless someone appeals)
If they are "suggested" to be a tobacco product, that's still a grey area and not necessarily does the suggestion by the judge to regulate them as tobacco, make them so. (Unless someone appeals)
It's very complicated and the placement of the ecig in the grand scheme of things could be an ongoing fight for years.
However, that said, Congress could come in, pass specific legislation quickly and voila... it is what it is. (But IMHO, I think that is less likely to happen. It could be tacked onto some transportation bill somewhere (LOL) but they would be hard pressed to create a bill specifically for ecigs.
Seriously, it's like trying to navigate a tanker through an ice field

Every move is slow and it's really hard to tell what's going to happen with the shifting ice ahead.
EDIT: If it IS a tobacco product, then currently, no tests are needed to prove safety. However, that too could change if the new regulations set require such testing. However, the testing for NRT's which would prove that it is a quit smoking product would definitely be off of the table.