Congress Passes Bill to Require Childproof Packaging for E-Liquids

2 min

House and Senate Adopt Child Nicotine Poisoning Prevention Act; President Obama Expected to Sign Measure into Law

On January 11, 2016, the U.S. House of Representatives passed the Child Nicotine Poisoning Prevention Act of 2015. The Senate adopted the same measure in December, and President Obama is expected to sign the bill into law.

This legislation will require childproof packaging for liquids that contain nicotine (e-liquids), specifically that any nicotine provided in an e-liquid container be packaged in accordance with the Consumer Product Safety Commission's standards and testing procedures for "special packaging." CPSC's special packaging standards require, among other things, use of packaging that is difficult for children under five years of age to open. The bill applies to any form of chemical nicotine, whether the chemical is naturally or synthetically derived. Additionally, the legislation would require FDA to consult with CPSC if the Agency maintains, enforces, imposes, or continues in effect any requirement for e-liquid containers, including child-resistant packaging.

Last July, we issued a Client Alert regarding FDA's advance notice of proposed rulemaking seeking comments on potential FDA rules on e-liquid exposure warnings and child-resistant packaging. As we noted then, FDA signaled that it was considering going beyond its proposed "deeming rule" (i.e., a rule which, if adopted, would "deem" products to be "tobacco products" (potentially including e-cigarettes) subject to FDA's regulation under the Federal Family Smoking Prevention and Tobacco Control Act). FDA has yet to issue its "deeming rule", and thus it remains unknown what products FDA will "deem" to be tobacco products and whether FDA's exercise of its deeming authority will withstand the virtually certain challenges to follow.

In any event, Congress's passage of the Child Nicotine Poisoning Prevention Act reflects congressional recognition that existing law is inadequate to regulate the new and still evolving e-cigarette technology and new legislative tools are needed.

If you have questions regarding the issues raised in this alert, please contact one of the authors.