[Congressional Record Volume 161, Number 106 (Thursday, July 9, 2015)]
[Senate]
[Pages S4972-S4973]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2192. Mrs. BOXER (for herself, Mr. Blumenthal, Mr. Brown, Mr.
Markey, Mr. Merkley, Mr. Nelson, Mr. Schumer, and Mr. Wyden) submitted
an amendment intended to be proposed to amendment SA 2089 submitted by
Mr. Alexander (for himself and Mrs. Murray) to the bill S. 1177, to
reauthorize the Elementary and Secondary Education Act of 1965 to
ensure that every
[[Page S4973]]
child achieves; which was ordered to lie on the table; as follows:
At the end of the bill, add the following:
SEC. 1020__. PROHIBITION ON MARKETING OF ELECTRONIC
CIGARETTES TO CHILDREN.
(a) Electronic Cigarette Defined.--
(1) In general.--Except as provided in paragraph (2), in
this section, the term ``electronic cigarette'' means any
electronic device that delivers nicotine, flavor, or other
chemicals via a vaporized solution to the user inhaling from
the device, including any component, liquid, part, or
accessory of such a device, whether or not sold separately.
(2) Exception.--In this section, the term ``electronic
cigarette'' shall not include any product that--
(A) has been approved by the Food and Drug Administration
for sale as a tobacco cessation product or for other
therapeutic purposes; and
(B) is marketed and sold solely for a purpose approved as
described in subparagraph (A).
(b) Prohibition.--
(1) In general.--No person may advertise, promote, or
market in commerce in a State described in paragraph (2) an
electronic cigarette in a manner that--
(A) the person knows or should know is likely to contribute
towards initiating or increasing the use of electronic
cigarettes by children who are younger than 18 years of age;
or
(B) the Federal Trade Commission determines, regardless of
when or where the advertising, promotion, or marketing
occurs, affects or appeals to children described in
subparagraph (A).
(2) Covered states.--A State described in this paragraph is
a State in which the sale of an electronic cigarette to a
child who is younger than 18 years of age is prohibited by a
provision of Federal or State law.
(c) Enforcement by Federal Trade Commission.--
(1) Unfair or deceptive act or practice.--A violation of
subsection (b)(1) shall be treated as a violation of a rule
defining an unfair or deceptive act or practice described
under section 18(a)(1)(B) of the Federal Trade Commission Act
(15 U.S.C. 57a(a)(1)(B)).
(2) Powers of commission.--
(A) In general.--The Federal Trade Commission shall enforce
this section in the same manner, by the same means, and with
the same jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade
Commission Act (15 U.S.C. 41 et seq.) were incorporated into
and made a part of this section.
(B) Privileges and immunities.--Any person who violates
this section shall be subject to the penalties and entitled
to the privileges and immunities provided in the Federal
Trade Commission Act (15 U.S.C. 41 et seq.).
(C) Rulemaking.--The Federal Trade Commission shall
promulgate standards and rules to carry out this section in
accordance with section 553 of title 5, United States Code.
(d) Enforcement by States.--
(1) In general.--In any case in which the attorney general
of a State has reason to believe that an interest of the
residents of the State has been or is threatened or adversely
affected by the engagement of any person subject to
subsection (b)(1) in a practice that violates such
subsection, the attorney general of the State may, as parens
patriae, bring a civil action on behalf of the residents of
the State in an appropriate district court of the United
States--
(A) to enjoin further violation of such subsection by such
person;
(B) to compel compliance with such subsection;
(C) to obtain damages, restitution, or other compensation
on behalf of such residents;
(D) to obtain such other relief as the court considers
appropriate; or
(E) to obtain civil penalties in the amount determined
under paragraph (2).
(2) Civil penalties.--
(A) Calculation.--For purposes of imposing a civil penalty
under paragraph (1)(E) with respect to a person who violates
subsection (b)(1), the amount determined under this paragraph
is the amount calculated by multiplying the number of days
that the person is not in compliance with subsection (b)(1)
by an amount not greater than $16,000.
(B) Adjustment for inflation.--Beginning on the date on
which the Bureau of Labor Statistics first publishes the
Consumer Price Index after the date that is 1 year after the
date of the enactment of this Act, and annually thereafter,
the amounts specified in subparagraph (A) shall be increased
by the percentage increase in the Consumer Price Index
published on that date from the Consumer Price Index
published the previous year.
(3) Rights of federal trade commission.--
(A) Notice to federal trade commission.--
(i) In general.--Except as provided in clause (iii), the
attorney general of a State shall notify the Federal Trade
Commission in writing that the attorney general intends to
bring a civil action under paragraph (1) not later than 10
days before initiating the civil action.
(ii) Contents.--The notification required by clause (i)
with respect to a civil action shall include a copy of the
complaint to be filed to initiate the civil action.
(iii) Exception.--If it is not feasible for the attorney
general of a State to provide the notification required by
clause (i) before initiating a civil action under paragraph
(1), the attorney general shall notify the Federal Trade
Commission immediately upon instituting the civil action.
(B) Intervention by federal trade commission.--The Federal
Trade Commission may--
(i) intervene in any civil action brought by the attorney
general of a State under paragraph (1); and
(ii) upon intervening--
(I) be heard on all matters arising in the civil action;
and
(II) file petitions for appeal of a decision in the civil
action.
(4) Investigatory powers.--Nothing in this subsection may
be construed to prevent the attorney general of a State from
exercising the powers conferred on the attorney general by
the laws of the State to conduct investigations, to
administer oaths or affirmations, or to compel the attendance
of witnesses or the production of documentary or other
evidence.
(5) Preemptive action by federal trade commission.--If the
Federal Trade Commission institutes a civil action or an
administrative action with respect to a violation of
subsection (b)(1), the attorney general of a State may not,
during the pendency of such action, bring a civil action
under paragraph (1) against any defendant named in the
complaint of the Commission for the violation with respect to
which the Commission instituted such action.
(6) Venue; service of process.--
(A) Venue.--Any action brought under paragraph (1) may be
brought in--
(i) the district court of the United States that meets
applicable requirements relating to venue under section 1391
of title 28, United States Code; or
(ii) another court of competent jurisdiction.
(B) Service of process.--In an action brought under
paragraph (1), process may be served in any district in which
the defendant--
(i) is an inhabitant; or
(ii) may be found.
(7) Actions by other state officials.--
(A) In general.--In addition to civil actions brought by
attorneys general under paragraph (1), any other officer of a
State who is authorized by the State to do so may bring a
civil action under paragraph (1), subject to the same
requirements and limitations that apply under this subsection
to civil actions brought by attorneys general.
(B) Savings provision.--Nothing in this subsection may be
construed to prohibit an authorized official of a State from
initiating or continuing any proceeding in a court of the
State for a violation of any civil or criminal law of the
State.
(e) Construction.--Nothing in this section shall be
construed to limit or diminish the authority of the Food and
Drug Administration to regulate the marketing of electronic
cigarettes, including the marketing of electronic cigarettes
to children.
(f) Relation to State Law.--This section shall not be
construed as superseding, altering, or affecting any
provision of law of a State, except to the extent that such
provision of law is inconsistent with the provisions of this
section, and then only to the extent of the inconsistency.
______