The Food and Drug Administration introduced a proposed rule yesterday that would extend its existing authority over certain tobacco products. Under the proposed rule, FDA would now oversee electronic/e-cigarettes, cigars, pipe tobacco, nicotine gels, waterpipe/hookah tobacco, and dissolvables. These products would be added to the ones already under FDA’s authority–cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco.
In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act, which gave FDA the authority to regulate the manufacture, distribution, and marketing of “tobacco products” to protect public health. The statute defines “tobacco products” as “any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product).” The Act specifically delineated cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco as products over which FDA had authority. But Congress also provided that FDA had authority over “any other tobacco product that the Secretary by regulation deems to be subject to this chapter.” Accordingly, through this proposed rule, FDA is “deeming” electronic/e-cigarettes, cigars, pipe tobacco, nicotine gels, waterpipe/hookah tobacco, and dissolvables to be “tobacco products” subject to FDA regulation. Under the rule, any future products that meet the statutory definition of “tobacco product” would also be deemed to be subject to FDA’s authority.