[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

======================================================================



 
            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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \2\American Association of Poison Control Centers, E-Cigarette 
Devices and Liquid Nicotine (online at www.aapcc.org/alerts/e-
cigarettes/).
    \3\ Id.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.