[Senate Report 113-311]
[From the U.S. Government Publishing Office]
113th Congress
2d Session SENATE Report
113-311
_______________________________________________________________________
Calendar No. 571
CHILD NICOTINE POISONING PREVENTION ACT OF 2014
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2581
December 12, 2014.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred thirteenth congress
second session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
BARBARA BOXER, California JOHN THUNE, South Dakota
BILL NELSON, Florida ROGER F. WICKER, Mississippi
MARIA CANTWELL, Washington ROY BLUNT, Missouri
MARK PRYOR, Arkansas MARCO RUBIO, Florida
CLAIRE McCASKILL, Missouri KELLY AYOTTE, New Hampshire
AMY KLOBUCHAR, Minnesota DEAN HELLER, Nevada
MARK BEGICH, Alaska DANIEL COATS, Indiana
RICHARD BLUMENTHAL, Connecticut TIM SCOTT, South Carolina
BRIAN SCHATZ, Hawaii TED CRUZ, Texas
ED MARKEY, Massachusetts DEB FISCHER, Nebraska
CORY BOOKER, New Jersey RON JOHNSON, Wisconsin
JOHN WALSH, Montana
Ellen Doneski, Staff Director
John Williams, General Counsel
David Schwietert, Republican Staff Director
Nick Rossi, Republican Deputy Staff Director
Rebecca Seidel, Republican General Counsel
Calendar No. 571
113th Congress Report
SENATE
2d Session 113-311
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CHILD NICOTINE POISONING PREVENTION ACT OF 2014
_______
December 12, 2014.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 2581]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2581) to require the Consumer
Product Safety Commission to promulgate a rule to require child
safety packaging for liquid nicotine containers, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
Purpose of the Bill
The purpose of S. 2581, the Child Nicotine Poisoning
Prevention Act of 2014, is to provide the Consumer Product
Safety Commission (CPSC) with statutory authority to regulate
liquid nicotine containers as a consumer product. Further, S.
2581 would direct the CPSC to promulgate a safety rule
requiring such products be packaged in a manner that would make
them significantly difficult for a child under the age of five
to open the container or otherwise access its liquid content.
Background and Needs
Liquid nicotine is a highly toxic substance: According to
the American Academy of Pediatrics (AAP), a 15-milliliter
dropper bottle filled with commercially available liquid
nicotine is capable of killing four small children.\1\ A very
small amount of the substance splashed on the skin of a child
can render the child very ill.
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\1\Senate Committee on Commerce, Science, and Transportation,
Testimony of Dr. Susan Tanski on behalf of the American Academy of
Pediatrics, Aggressive E-Cigarette Marketing and Potential Consequences
for Youth, 113th Cong. (June 18, 2014) (online at
www.commerce.senate.gov/public/?a=Files.Serve&File_id=408415ee-8f64-
4127-8887-62d90b34ff70).
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The rapid rise in the popularity of electronic cigarettes
(e-cigarettes) has concomitantly ushered in a rapid rise in
dangerous exposures to liquid nicotine. The American
Association of Poison Control Centers (AAPCC) says the number
of reported liquid nicotine exposures (from cigarette devices
or containers) skyrocketed 213 percent from 2012 to 2013.\2\
Through August 31 of this year, AAPCC reports that local
poison-control centers have received 2,724 calls for liquid
nicotine exposure.\3\
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\2\American Association of Poison Control Centers, E-Cigarette
Devices and Liquid Nicotine (online at www.aapcc.org/alerts/e-
cigarettes/).
\3\ Id.
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The CPSC implements and enforces the Poison Prevention
Packaging Act of 1970 (PPPA),\4\ which, among other things,
provides the CPSC with the authority to promulgate rules
requiring ``special packaging'' for products that pose a
poisonous hazard to children. When the CPSC designates consumer
products for special packaging, such products must be
``designed or constructed to be significantly difficult for
children under five years of age to open or obtain a toxic or
harmful amount of the substance contained therein within a
reasonable time frame and not difficult for normal adults to
use properly.''\5\ Under the PPPA, the CPSC has promulgated
child-proof packaging for numerous consumer products, including
over-the-counter medication and household cleaning supplies.
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\4\Pub. L. No. 91-601 (15 U.S.C. Sec. Sec. 1471 et seq.).
\5\15 U.S.C. Sec. 1471.
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The CPSC lacks authority under the PPPA to require similar
special packaging requirements for liquid nicotine, because
most liquid nicotine is derived from tobacco and is,
consequently, a ``tobacco product,'' which is exclusively
regulated by the Food and Drug Administration (FDA).\6\ A small
percentage of liquid nicotine on the market is synthetically
manufactured and, thus, considered a ``consumer product'' under
the Consumer Product Safety Act (CPSA) and subject to CPSC
authority.\7\
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\6\26 U.S.C. Sec. 5702.
\7\15 U.S.C. Sec. 2052.
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Summary of Provisions
S. 2581 would provide the CPSC with statutory authority to
regulate liquid nicotine containers as a consumer product and
would further direct the CPSC to promulgate a safety rule
requiring such products be packaged in a manner that would make
them significantly difficult for a child under the age of five
to open the container or otherwise access its liquid content.
S. 2581 contains a savings clause that would preserve all of
the authority of the FDA.
Legislative History
Senator Nelson introduced S. 2581 on July 10, 2014. The
bill has 13 cosponsors, including Chairman Rockefeller and six
Members of the Committee: Senators Ayotte, Blumenthal, Boxer,
Klobuchar, Markey, and Pryor.
On September 17, 2014, in an open Executive Session, the
Committee considered the bill and reported S. 2581 favorably
without amendment by voice vote.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 2581--Child Nicotine Poisoning Prevention Act of 2014
S. 258.1 would direct the Consumer Product Safety
Commission (CPSC) to develop regulations requiring special
packaging for liquid nicotine containers. CBO estimates that
implementing the bill would cost about $1 million over the
2015-2019 period, assuming appropriation of the necessary
amounts. Enacting S. 2581 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
Under the bill, the CPSC would require liquid nicotine
containers to be packaged in a way that would make it difficult
for children younger than five years to open or to obtain a
harmful amount of the enclosed substance. Based on information
from the agency, CBO estimates that the cost of developing the
regulation and conducting compliance testing would total about
$1 million over the next five years.
S. 2581 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on state, local, or tribal governments.
The legislation would impose a private-sector mandate, as
defined in UMRA, on manufacturers of consumer products
containing liquid nicotine. The bill would require those
manufacturers to use special packaging for such products to
make them child resistant. The cost of this mandate would be
the incremental cost of using packaging that would comply with
the standard established by the CPSC. Based on data provided by
the CPSC and representatives of affected manufacturers, CBO
estimates that the cost of the mandate would fall below the
annual threshold established in UMRA for private-sector
mandates ($152 million in 2014, adjusted annually for
inflation).
The CBO staff contacts for this estimate are Daniel Hoople
(for federal costs) and Mann Burnett (for the private-sector
impact). The estimate was approved by Holly Harvey, Deputy
Assistant Director for Budget Analysis.
Regulatory Impact
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
The legislation would provide the CPSC with statutory
authority to regulate liquid nicotine containers as a consumer
product and would further direct the CPSC to promulgate a
safety rule requiring such products be packaged in a manner
that would make them significantly difficult for a child under
the age of five to open the container or otherwise access its
liquid content.
ECONOMIC IMPACT
This legislation is not expected to have an adverse
economic impact on the Nation.
PRIVACY
S. 2581 would not have a negative impact on the personal
privacy of individuals.
PAPERWORK
S. 2581 would create a new reporting requirement for the
CPSC. The CPSC would be directed to submit a report to Congress
that evaluates the implementation of the program no later than
one year after the last day of each fiscal year for which
grants are awarded.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title
Section 1 would establish the short title of the bill as
the ``Child Nicotine Poisoning Prevention Act of 2014.''
Section 2. Child safety packaging for liquid nicotine containers
Subsection (a) of section 2 would define a ``liquid
nicotine container'' as a ``consumer product'' as defined by
the CPSA. This definition would effectively grant the CPSC the
authority to regulate all liquid nicotine products, including
non-synthesized liquid nicotine derived from tobacco. The
definition would limit liquid nicotine containers to products
in which the liquid nicotine can be accessed through openings
by consumers through ``normal and foreseeable use.'' As such,
the definition would eliminate large commercial barrels of
liquid nicotine from the scope of the bill and the ambit of
CPSC authority.
Furthermore, subsection (a) of section 2 would define
``special packaging'' in accordance with the PPPA, which
authorizes the CPSC to promulgate rules requiring child-
proofing for products that pose a poisonous hazard to children.
Specifically, as noted above, products subject to ``special
packaging'' requirements must be designed or constructed in a
manner that makes it significantly difficult for a child under
the age of five to open the container or to otherwise access
the poisonous substance inside the container.
Subsection (b) of section 2 would direct the CPSC to
promulgate a rule requiring special packaging for liquid
nicotine products. The CPSC would promulgate such rules under
section 553 of title 5, United States Code (commonly known as
the Administrative Procedure Act) and not be required to follow
the more burdensome rulemaking processes under the CPSA, the
PPPA, or the Federal Hazardous Substances Act.\8\
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\8\Pub. L. No. 86--613 (15 U.S.C. Sec. Sec. 1261-1278).
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Subsection (b) of section 2 also contains a savings clause
that would preserve all of the authority of the FDA.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
bill as reported would make no change to existing law.