[Senate Report 114-12]
[From the U.S. Government Publishing Office]


                                                        Calendar No. 35
114th Congress    }                                    {         Report
                                 SENATE
 1st Session      }                                    {         114-12

_______________________________________________________________________
                                     

            CHILD NICOTINE POISONING PREVENTION ACT OF 2015

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 142

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                 April 13, 2015--Ordered to be printed
                 
 
                         U.S. GOVERNMENT PUBLISHING OFFICE 

49-010                         WASHINGTON : 2015                 
                 
                 
                 
                 
                 
                 
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                    one hundred fourteenth congress
                             first session

                   JOHN THUNE, South Dakota, Chairman
 ROGER F. WICKER, Mississippi         BILL NELSON, Florida
 ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
 MARCO RUBIO, Florida                 CLAIRE McCASKILL, Missouri
 KELLY AYOTTE, New Hampshire          AMY KLOBUCHAR , Minnesota
 TED CRUZ, Texas                      RICHARD BLUMENTHAL, Connecticut
 DEB FISCHER, Nebraska                BRIAN SCHATZ, Hawaii
 JERRY MORAN, Kansas                  ED MARKEY, Massachusetts
 DAN SULLIVAN, Alaska                 CORY BOOKER, New Jersey
 RON JOHNSON, Wisconsin               TOM UDALL, New Mexico
 DEAN HELLER, Nevada                  JOE MANCHIN, West Virginia
 CORY GARDNER, Colorado               GARY PETERS, Michigan
 STEVE DAINES, Montana
                    David Schwietert, Staff Director
                   Nick Rossi, Deputy Staff Director
                    Rebecca Seidel, General Counsel
                 Kim Lipsky, Democratic Staff Director
           Christopher Day, Democratic Deputy Staff Director
                 Clint Odom, Democratic General Counsel
                 
                 
                 
                 
                                                        Calendar No. 35
114th Congress     }                                    {        Report
                                 SENATE
 1st Session       }                                    {        114-12

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



 
            CHILD NICOTINE POISONING PREVENTION ACT OF 2015

                                _______
                                

                 April 13, 2015.--Ordered to be printed

                                _______
                                

Mr. Thune, from the Committee on Commerce, Science, and Transportation, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 142]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 142) 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 
with an amendment (in the nature of a substitute) and 
recommends that the bill (as amended) do pass.

                          Purpose of the Bill

    The purpose of S. 142, the Child Nicotine Poisoning 
Prevention Act of 2015, is to provide the Consumer Product 
Safety Commission (CPSC) with statutory authority to regulate 
liquid nicotine containers normally used by consumers as a 
consumer product. The bill 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.

                          Background and Needs

    Liquid nicotine is a highly toxic substance. According to 
the American Academy of Pediatrics, 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 him 
or her 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).
---------------------------------------------------------------------------
    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 liquid nicotine 
delivery devices or containers) skyrocketed 213 percent from 
2012 to 2013.\2\ Between January 1, 2014, to December, 31, 
2014, AAPCC reports that local poison-control centers have 
received 3,808 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\Ibid.
---------------------------------------------------------------------------
    The CPSC implements and enforces the Poison Prevention 
Packaging Act (PPPA),\4\ which, among other things, provides 
the CPSC with the authority to promulgate rules requiring 
``special packaging'' for products that pose a poisoning 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\15 U.S.C. 1471 et seq.
    \5\15 U.S.C. Sec. 1471.
---------------------------------------------------------------------------
    The CPSC currently 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, already considered a 
``consumer product'' under the Consumer Product Safety Act\7\ 
and subject to CPSC authority.
---------------------------------------------------------------------------
    \6\26 U.S.C. Sec. 5702
    \7\15 U.S.C. 2051 et seq.
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                         Summary of Provisions

    S. 142 would provide the CPSC with statutory authority to 
regulate liquid nicotine containers as a consumer product under 
the PPPA 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 contents. S. 142 would contain a savings clause to 
preserve all of the authority of the FDA.

                          Legislative History

    In the 113th Congress, the Committee held a hearing on June 
18, 2014, entitled, ``Aggressive E-Cigarette Marketing and 
Potential Consequences for Youth.'' Senator Nelson introduced 
S. 2581, the Child Nicotine Poisoning Prevention Act of 2014, 
which was reported favorably by the Committee on September 18, 
2014. The report accompanying S. 2581 (Report No. 113	311) was 
filed by Senator Rockefeller on December 12, 2014.
    In the 114th Congress, Senator Nelson introduced S. 142 on 
January 8, 2015. The bill has 14 cosponsors, including 5 
Members of the Committee: Senators Ayotte, Blumenthal, 
Klobuchar, Markey, and Schatz.
    On February 26, 2015, the Committee held an Executive 
Session at which S. 142 was considered. The bill was approved 
unanimously by voice vote and was ordered reported with an 
amendment in the nature of a substitute. The Committee approved 
a substitute amendment by Senator Nelson that would further 
clarify the definition of ``liquid nicotine container'' and 
would impose reporting requirements on the CPSC.

                            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. 142--Child Nicotine Poisoning Prevention Act of 2015

    S. 142 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 2016-2020 period, 
assuming the availability of appropriated funds. Enacting S. 
142 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. The CPSC would report 
to the Congress within three years on the regulations 
established under the legislation and any enforcement action 
undertaken. 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. 142 contains an intergovernmental mandate as defined in 
the Unfunded Mandates Reform Act (UMRA) because it would 
preempt state laws governing packaging for containers holding 
liquid nicotine. While the mandate would limit the application 
of state laws, it would impose no duty on states that would 
result in additional spending. Therefore, CBO estimates that 
the cost of the mandate would fall below the threshold 
established in UMRA for intergovernmental mandates ($77 million 
in 2015, adjusted annually for inflation).
    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 ($154 million in 2015, adjusted annually for 
inflation).
    The CBO staff contacts for this estimate are Daniel Hoople 
(for federal costs), J'nell Blanco Suchy (for intergovernmental 
effects), and Amy Petz (for private-sector effects). 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

    The legislation would not have a negative impact on the 
personal privacy of individuals.

                               paperwork

    The legislation would create a new reporting requirement 
for the CPSC. The CPSC would be directed to submit a report to 
the Committee on Commerce, Science, and Transportation of the 
Senate and the Committee on Energy and Commerce of the House of 
Represenatatives detailing the rule and requirements 
promulgated under the Act and any enforcement actions taken 
thereunder.

                   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 under this 
rule.

                      Section-by-Section Analysis


Section 1. Short title.

    Section 1 would establish the title of the bill as the 
``Child Nicotine Poisoning Prevention Act of 2015.''

Section 2. Child safety packaging for liquid nicotine containers.

    Subsection (a) of this section would define a ``liquid 
nicotine container'' as a ``consumer product'' as defined by 
the CPSA. This definition effectively would 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.
    Under subsection (a), ``liquid nicotine container'' would 
also not include nicotine in a solution or other form in a 
sealed, pre-filled, disposable containers inserted directly 
into an electronic cigarette or other similar device, so long 
as the nicotine in the container is inaccessible or cannot flow 
freely out of such container or electronic cigarette or other 
similar device though normal and foreseeable use by a consumer. 
As such, the definition would eliminate nicotine cartridges 
associated with closed-system electronic cigarettes.
    Furthermore, subsection (a) 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 this section 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\
---------------------------------------------------------------------------
    \8\15 U.S.C. 1261 et seq.
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    Subsection (b) also contains a savings clause preserving 
all of the authority of the FDA.
    Subsection (c) of this section would direct the CPSC, not 
later than 3 years after the date of enactment of the bill, to 
submit a report detailing the rule and requirements promulgated 
under the bill, and any enforcement actions taken thereunder to 
the Committee on Commerce, Science, and Transportation of the 
Senate and to the Energy and Commerce Committee of the House of 
Representatives.

                        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.

                                  [all]