On January 28, 2016, President Obama signed the Child Nicotine Poisoning Prevention Act of 2015 (the Act) into law which requires liquid nicotine containers to be packaged in child-resistant packaging. The Act takes effect on July 26, 2016. Liquid nicotine containers are defined as packages containing nicotine in a solution or other form, including soluble nicotine in any concentration, and that are accessible by a consumer; but excludes sealed, pre-filled and disposable containers which are inserted into e-cigarettes, ENDS or similar products, and any product where the nicotine is not accessible by a consumer. The Act also provides effectiveness and testing standards as set forth in the federal Poison Prevention Packaging Act.
A number of states have enacted or proposed similar legislation, though some states set forth requirements that are separate and distinct from the federal law. For example, certain states regulate e-liquid containers and cartridges, or all devices used to deliver nicotine in a vapor or aerosol; other states regulate all e-liquids whether or not they contain nicotine; still other states require special warnings or other labeling requirements; and finally, some states set forth different child-resistant packaging standards.
Notably, legislation in some states was enacted and effective prior to the federal legislation being signed into law, and many of these states adopt the federal standards or have similar standards. A few states’ laws do not adopt the federal standards and are already effective or will become effective later this year. For these states, it is not clear the extent to which the federal law preempts any conflicting state requirements, and guidance will need to be sought from the states. Of course, companies should proceed to comply with both state and federal requirements, when possible. Importantly, compliance with the federal standard will be sufficient in many states.