The Senate version of a bill (S. 142) to give the U.S. Consumer Product Safety Commission (CPSC) legal authority over liquid nicotine containers awaits President Obama’s signature. The measure received final House approval by voice vote on January 11. The law would allow CPSC to apply the safety closure provisions of the Poison Prevention Packaging Act* to liquid nicotine containers, which have increasingly drawn concerns stemming from poisonings of children using the liquid containers.
CPSC’s jurisdiction would exclude pre-filled, disposable cartridges inserted directly into electronic cigarettes. Other containers would need to comply with the closure and testing requirements mandated by 16 CFR 1700. The law would apply to all forms of nicotine regardless of their being naturally or chemically derived.
The law is necessary because the CPSA excludes tobacco and tobacco products from the definition of consumer products under CPSC jurisdiction. In the past these products were typically understood to refer to products such as cigarettes. The exclusion covers liquid nicotine as it is derived from tobacco. This led to state laws, such as in one in New York that resulted in at least $95,000 in penalties over lack of safety closures.
Liquid nicotine is highly concentrated, making it a low-dose poison. It often comes in flavors – including candies – as well as packaging – including cartoon characters – that appeal to children.
The legislation contains language emphasizing that CPSC’s safety closure jurisdiction would not prevent or preempt the Department of Health and Human Services to regulate such liquids. The department includes the U.S. Food and Drug Administration and the Centers for Disease Control and Prevention, both of which have roles in addressing the health-related concerns about tobacco use.
The companion House bill is HR 3242.
Electronic cigarette devices and liquid nicotine have recently become a very active area for Proposition 65 enforcement. The California Attorney General’s office prosecuted electronic cigarette companies in 2010 under Proposition 65, and additional causes of action.
*Poison Prevention Packaging Act (PPPA), Pub. L. 91–601, 84 Stat. 1,670 (Dec. 30, 1970).