The petition by these twenty-five was to the FDA, an organization which last spring “deemed”, with force of law, that a handheld battery with variable voltage/wattage discharge is a “tobacco product”.
Is this an example of prescriptive or proscriptive lexicography in battle with descriptive linguistics?
That wasn’t the FDA’s first choice, and this case is a perfect example of why you don’t want to use such official categorizations as guides to general usage.
The FDA (US Food and Drug Administration) had long sought to regulate tobacco, but the US Supreme Court ruled (FDA v. Brown and Williamson, 2000) that the agency had no authority to do so, either via nicotine as a drug or via regulation of cigarettes as a “drug delivery system.”
The FDA already had extensive authority to regulate “drug delivery systems,” but only when used for therapeutic purposes, in this case to help people quit smoking, as in a nicotine patch. Such drug delivery systems were subject to strict efficacy and safety standards and required extensive testing before they could be approved for sale.
In 2009 Congress gave the FDA limited authority to regulate tobacco with the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act). Limitations on tobacco and tobacco products were restricted to limiting marketing and sales to minors, warning labels on smokeless tobacco products (they already had the authority to require warning labels on smoked products), prohibit marketing claims of “low-risk” products without adequate scientific evidence, and require disclosure of ingredients in tobacco products. The act did not give the FDA authority to ban tobacco or require safety and efficacy testing of tobacco products.
Also in 2009, the FDA banned the import of e-cigarettes because the agency deemed them to be unapproved “drug delivery systems.” The company seeking to import them brought suit, and in Sottera v. FDA (2011) the court ruled that since the e-cigarettes were not intended for therapeutic use the agency had no authority to regulate them. The decision was confirmed upon appeal, and the FDA chose not to appeal to the Supreme Court. Instead, the FDA settled for regulating e-cigarettes as a “tobacco product” under the 2009 law.
So neither the FDA nor anyone else wanted to label e-cigarettes as “tobacco products,” but a complicated web of laws and court decisions left that their only option to regulate them.