Back in April, when the FDA conceded to comply with Judge Leon's ruling that e-cigarettes are tobacco products at
Regulation of E-Cigarettes and Other Tobacco Products
the agency stated
The Agency intends to propose a regulation that would extend the Agency’s “tobacco product” authorities in Chapter IX of the FD&C Act, which currently only apply to certain specifically enumerated “tobacco products,” to other categories of tobacco products that meet the statutory definition of “tobacco product” in Section 201(rr) of the Act. The additional tobacco product categories would be subject to general controls, such as registration, product listing, ingredient listing, good manufacturing practice requirements, user fees for certain products, and the adulteration and misbranding provisions, as well as to the premarket review requirements for “new tobacco products” and “modified risk tobacco products.”
On October 14, US Senate Democrats Blumenthal, Lautenberg & Brown wrote to FDA Commissioner Margaret Hamburg at
http://www.cspdigitals.com/tobaccoenews/tom-letter.pdf
urging the FDA to "swiftly" expand Chapter IX of FSPTCA to apply to
all tobacco products including cigars, pipe tobacco, hookah, dissolvables and accessories (they forgot to include e-cigarettes, but e-cigs will be included if FDA proposes this type of regulation).
That letter also falsely accused the tobacco industry of undermining the FSPTCA, criticized companies for marketing exponentially less hazardous smokefree alternatives to smokers, and grossly misrepresented the health risks/benefits and marketing practices of smokefree products.
Prior to that, on June 16, Senators Merkley, Brown and 10 other Democrats sent a letter at
http://www.ktvz.com/news/28300863/detail.html to Margaret Hamburg pressuring the FDA to reverse its ruling that Star's Ariva BDL and Stonewall BDL aren't smokeless tobacco products (as defined by FSPTCA). That letter also grossly exaggerated the health/safety risks of dissolvable tobacco (that now includes nicotine lozenges), falsely claimed the products are marketed to youth, and called them candy.
But back to the subject of this thread, since Chapter IX of the FSPTCA doesn't ban television or radio ads for cigarettes or smokeless tobacco, I don't think e-cig ads would be banned on television or radio even if the FDA approved a regulation that applied Chapter IX to e-cigs.
However, if FDA proposes and then gives final approval to a regulation to apply Chapter IX to e-cigarettes,
Section 910 could/would effectively ban the sale of many/most/all e-cigarette products currently on the US market because it could/would ban all e-cig products that weren't on the market before February 15, 2007.
And if Chapter IX is applied to e-cigarettes,
Section 911 also would make it a federal felony for any e-cigarette manufacturer or importer to truthfully claim that e-cigarettes are less hazardous alternatives to cigarettes.
Tobacco prohibitionists and Congressional Democrats who oppose tobacco harm reduction want the FDA to quickly propose and approve that type of regulation (i.e. applying Chapter IX to e-cigs, dissolvables, cigars, pipe tobacco, hookah and other currently unregulated tobacco products) in the next 12 months (during Obama's first term) because they are properly concerned that Obama won't win reelection, and because they know that a Republican president won't allow the FDA to propose or approve that type of regulation.
So we need to prevent the FDA from approving a new regulation that would apply Chapter IX to e-cigarettes before next year's election.
