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CPSC May Get New Authority Over Liquid Nicotine Containers for E-Cigarettes

For all of you who know the U.S. Consumer Product Safety Commission (CPSC), you know that the agency distinctly does not have authority over tobacco or tobacco products. This arguably wasn’t always the case. Early on, the American Public Health Association petitioned the CPSC to regulate cigarettes containing more than 21 mg of tar. When the Commission voted not to take action, a district court ordered it to under the Federal Hazardous Substances Act (FHSA), but Congress amended the law before the CPSC could take action. See Consumer Product Safety Commission Improvements Act, Pub. L. 94–284, 90 Stat. 503 (May 11, 1976); see also Food & Drug Administration v. Brown & Williamson Corp., 529 U.S. 120, 150–151 (2000) (discussing the petition, litigation, and statutory amendment). Tobacco and tobacco products have been explicitly excluded from CPSC jurisdiction since that 1976 law.

Much has changed since then. Tobacco products have recently evolved beyond traditional cigarettes and other tobacco-leaf–containing products to include “electronic” devices that aerosolize nicotine. Under the 2009 Family Smoking Prevention and Tobacco Control Act (FSPTCA), Pub. L. 111–31, 123 Stat. 1,776 (June 22, 2009), the Food and Drug Administration (FDA) gained authority to regulate tobacco products, which are now defined to include any products that contain nicotine derived from tobacco. Nicotine-containing electronic cigarettes and the “e-liquids” used in them will come under FDA’s tobacco authority as soon as FDA finalizes its “Deeming Regulation.”

The limitation on CPSC’s jurisdiction on products in the “nicotine family” also appears set to be loosened – albeit only slightly – as Congress just passed the Child Nicotine Poisoning Prevention Act (S. 142), which is currently awaiting the President’s signature. The law would impose packaging restrictions on certain liquid nicotine products similar to those already required under the Poison Prevention Packaging Act (PPPA), Pub. L. 91–601, 84 Stat. 1,670 (Dec. 30, 1970). 

© 2020 Keller and Heckman LLPNational Law Review, Volume VI, Number 28


About this Author

Sheila Millar, Keller Heckman, advertising lawyer, privacy attorney

Sheila A. Millar counsels corporate and association clients on advertising, privacy, product safety, and other public policy and regulatory compliance issues.

Ms. Millar advises clients on an array of advertising and marketing issues.  She represents clients in legislative, rulemaking and self-regulatory actions, advises on claims, and assists in developing and evaluating substantiation for claims. She also has extensive experience in privacy, data security and cybersecurity matters.  She helps clients develop website and app privacy policies,...

Azim Chowdhury, Keller Heckman, ECigarette Research lawyer, FDA Regulatory Compliance Attorney

Azim Chowdhury joined Keller and Heckman in 2010 and practices in the area of food, drug, and tobacco law. 

Mr. Chowdhury advises domestic and foreign corporations in matters of FDA and international regulatory compliance. In particular, he assists corporations in establishing clearances for food and drug additives in the U.S., Canada, and the European Union, with an emphasis on indirect additives used in food-contact materials.  Mr. Chowdhury has also developed expertise in tobacco and e-vapor product regulation relating to the implementation of the Family Smoking Prevention and Tobacco Control Act, and spearheaded the FDA Tobacco and Electronic Cigarette practice at Keller and Heckman.  Specifically, Mr. Chowdhury has experience representing tobacco, e-cigarette and e-liquid manufacturers, suppliers and trade associations in matters of FDA regulatory and corporate compliance.

Mr. Chowdhury is also a frequent contributor to the Food and Drug Law Institute's (FDLI) Update Magazine, has served on the Editorial Advisory Board of the Food and Drug Law Journal, and has authored and edited numerous articles and publications, including Tobacco Regulation and Compliance: An Essential Resource, FDA Regulation of Tobacco: A Comprehensive Guide – An FDLI Primer and Tobacco and Nicotine Delivery: Regulation and Compliance, 2nd Edition. He frequently speaks at industry conferences and events, was featured in U.S. News and World Reports Best Lawyers Edition(2016) and was named one of “10 Names to Know in the Vape World” in the October 2015 issue of Vape Magazine

Mr. Chowdhury also has an active pro bono practice through Keller and Heckman’s Pro Bono Program and has been featured in the Baltimore Sun for successfully obtaining asylum in the United States for a family who fled their home country of El Salvador because of violence they faced from an international gang.