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Consumer Product Law Blog

Friday, April 8, 2016

New Law Gives CPSC Authority Over Liquid Nicotine Containers For E-Cigarettes

On January 28, 2016, Barack Obama signed the Child Nicotine Poisoning Prevention Act into law. The new law requires child resistant packaging on liquid nicotine containers used with popular electronic cigarettes. Liquid nicotine is extremely toxic to children, and the act is designed to prevent accidental poisonings.

The law’s special packaging rules subject liquid nicotine products to the same child resistant packaging standards that are already required for many hazardous household products, such as prescription drugs and furniture polish. These special packaging standards were first promulgated under the Poison Prevention Packaging Act of 1970 (PPPA), and are now extended to the e-cigarette industry. The Child Nicotine Poisoning Prevention Act does not create different packaging standards. The new law instead applies the older, existing standards to new products.

Under the new law, the Consumer Product Safety Commission’s (CPSC) authority has been expanded to include the enforcement of packaging regulations related to the growing market for e-cigarettes and other “vaping” devices. The CPSC’s new powers, however, are limited to liquid nicotine and do not extend to all tobacco products.

For many years, the Food and Drug Administration (FDA), rather than the CPSC, had sole jurisdiction over tobacco and tobacco products. To a great extent that remains the same. The new law does not limit the FDA’s authority to regulate e-cigarettes, liquid nicotine or similar products. Rather, the new act only grants the CPSC authority to enforce PPPA special packaging standards. The enforcement of special packaging standards has long been the realm of the CPSC. If the FDA adopts, imposes or enforces any packaging requirements for liquid nicotine containers, the FDA must consult with the CPSC and take the CPSC’s expertise into consideration.

As with prescription medicines, there are distinct boundaries between what the FDA regulates and what the CPSC regulates. For example, the FDA oversees the actual medicines inside of a container, while the container itself must meet child resistant packaging requirements enforced by the CPSC. Under the new law, the CPSC only enforces container-packaging rules. The FDA continues to regulate the actual use of tobacco and tobacco products, such as liquid nicotine.

Not all nicotine products are regulated under the new law. The Child Nicotine Poisoning Prevention Act applies only to “liquid nicotine containers.” The act does not apply to all e-cigarette related substances, and it the excludes e-cigarette materials that are not considered dangerous, such as e-liquids with that do not contain nicotine or prefilled containers of liquid nicotine that are sealed and inaccessible by children. This approach is similar to other CPSC regulations that exempt products that do not contain harmful substances or that are otherwise inaccessible to children.

Being added to the list of PPPA products regulated by the CPSC creates two sets of additional obligations for regulated businesses. Not only do regulated companies have to abide by the special packaging specifications, they must also meet CPSC certification responsibilities. That means importers or U.S. businesses who package these items, must also formally certify the packaging conforms to CPSC regulations. Compliance with PPPA performance regulations is not enough. Businesses have to further certify in a separate document that the special packing has been tested and complies with the regulations.

Affected businesses will have until the end of July 2016 to comply with the new rules under the PPPA. Companies in the electronic cigarette industry should expect the CPSC to vigorously exercise its new regulatory authority, and these businesses should begin to immediately implement all necessary steps to comply with the Child Nicotine Poisoning Prevention Act.





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