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A draft of FDA regulations of the electronic cigarette industry is now public. With a definitive timeline — a 75 day comment period — in effect, many are debating the worst of the proposal. The focus tends to be on required applications for any products newer than 2007. Meanwhile, there may remain some arguments for why the FDA shouldn’t be in control of the industry to begin with.

Back in 2010 a judge decided in favor of Njoy and Smoke Everywhere, ruling that the FDA could not exercise its authority over drugs against electronic cigarettes. He even pointed out that it seemed unusual that the FDA would push for control of the products as drugs and devices rather than as tobacco products. It appeared as if FDA authority over tobacco products was not powerful enough for their taste. So they pushed for drug controls — which would more easily allow for bans, product seizures, and more.

In the aftermath of that court ruling, many assumed that the FDA would control electronic cigarettes as tobacco products and, indeed, many assumed the court ruling had declared electronic cigarettes to be tobacco products. In actuality, the ruling only stated that regulation of electronic cigarettes made more sense under tobacco controls than drug controls, but didn’t actually say that that was the way it would or should be done.

So now we’re left with the next fairly obvious question: Are electronic cigarettes tobacco products and thus something the FDA should be in control of?

There’s a few issues with the FDA attempting to control electronic cigarettes under its tobacco products authority. In order to control electronic cigarettes, the FDA actually had to redefine tobacco products to include electronic cigarettes. This may be the weak point in the FDA’s proposal. Here’s why.

First and foremost, electronic cigarettes aren’t, literally, tobacco products. Electronic cigarettes — though sometimes containing nicotine derived from tobacco — can be created without any connection to the tobacco industry. Nicotine can be produced pharmaceutically without tobacco or can be extracted from non-tobacco sources. Placing controls on them as tobacco products seems a bit nonsensical.

FDA tobacco controls were designed to fight a particular set of health problems. Generally, regulatory architectures are designed with a singular purpose. In the case of tobacco products, regulation exists largely to combat the massive harm caused by tobacco tar and smoke. Without proving that electronic cigarettes cause a similar degree or profile of harm, the same regulations seem likely to be overkill and largely unjustifiable.

Electronic cigarettes are extremely diverse and require more than simple ingredients and marketing regulation. Adding electronic cigarettes to tobacco regulations is less like adding a country to a continent and more like adding adding a continents to another, already expansive continent. Electronic cigarettes are so diverse and different from the world of tobacco products that they can’t easily be added under another heading and given a close enough thumbs up.

There’s still no evidence that the FDA needs to be involved . The guilty until proven innocent approach to regulation is wearing thin on a great many people. Without proof that electronic cigarettes cause enough harm to justify controls and rules beyond that which would be applied to any other consumer product, regulation seems like just another way to expend power needlessly. Regulation of electronic cigarettes could just as easily happen under consumer protection groups.

While many may focus on arguing against the particulars of FDA regulation and what’s fair and unfair, it may be prudent to first ask, should they be in on the discussion in the first place?