Child-Resistant Packaging for E-Liquid: A Review of US State Legislation

Abstract

A growing number of states have introduced or enacted legislation requiring child-resistant packaging for e-liquid containers; however, these laws involve varying terms, packaging standards, and enforcement provisions, raising concerns about their effectiveness. We evaluated bills against 4 benchmarks: broad product definitions that contemplate future developments in the market, citations to a specific packaging standard, stated penalties for violations, and express grants of authority to a state entity to enforce the packaging requirements. Our findings showed that 3 states meet all 4 benchmarks in their enacted legislation. We encourage states to consider these benchmarks when revising statutes or drafting future legislation.

In December 2014, an 18-month-old boy in New York died as a result of ingesting a 100-milligram vial of a liquid solution containing nicotine.¹ The toddler’s death—thought to be the first of its kind in the United States—spotlights the growing public health concern regarding accidental poisoning from liquid nicotine and electronic nicotine delivery systems (commonly referred to as e-cigarettes).

Liquid nicotine, alternatively known as e-liquid, is the key component of e-cigarettes. “Open” e-cigarette systems, which permit the user to manually add the e-liquid to a refillable tank, are thought to produce the greatest hazard to young children. Virtually nonexistent as recently as 2010, open systems now constitute more than half of the $2.5 billion domestic e-cigarette market and are its fastest-growing segment.²

Accompanying the dramatic growth in open systems has been an even sharper increase in accidental e-liquid poisonings, particularly among children. As little as 1 tablespoon of “commercially available liquid nicotine is capable of killing four small children.”³ Even smaller levels of exposure to e-liquid, whether ingested or absorbed through the skin, can lead to nausea, vomiting, cardiac arrest, seizures, or coma.^4,5 Between 2010 and 2014, the reported number of human exposures in the United States involving e-liquid increased more than 10-fold (from 271 to 3783). Nearly half of these reported exposures occurred among children younger than 6 years.⁶

Child-resistant packaging can reduce the risk of e-liquid poisoning among children. However, federal law currently does not require child-resistant packaging or otherwise regulate the manufacture, distribution, or sale of e-liquid or e-cigarettes. In July 2015, the Food and Drug Administration (FDA) issued an advance notice of proposed rulemaking seeking comments and data on regulatory actions the agency can take “with respect to nicotine exposure warnings and child-resistant packaging.”⁷ These regulatory efforts demonstrate the FDA’s growing concern over the proliferation of electronic cigarettes and e-liquid, but meaningful federal action on packaging is still likely a year or more away.

Because there has not yet been federal regulation of e-liquid, state legislatures have acted to promulgate state-level standards for e-liquid containers. We conducted a survey to identify the standards used by state legislatures to address child-resistant packaging for e-liquid, assess whether state-level legislation is comprehensive in its scope, and ascertain whether each state uses a specific, industry-wide standard for child-resistant packaging. Legislation from 3 states met the criteria we identified as critical to effective regulation of child-resistant packaging for e-liquid containers.

METHODS

Codified statutory laws, session laws, and proposed and failed legislation for all 50 states and the District of Columbia were compiled through searches in WestLaw, LexisNexis, and the official legislative database for each jurisdiction. The 2014 and 2015 legislative sessions were reviewed. We used keywords such as “electronic cigarette,” “e-cigarette,” “liquid nicotine,” “e-liquid,” “vapor,” “special,” “packaging,” “child-proof,” “child-resistant,” and combinations thereof to search the compiled legislation.

We organized and analyzed statutes and bills to determine whether they met the 4 benchmarks we identified as most important to crafting effective legislation on this topic: broad and flexible definitions that encompass a wide variety of products and contemplate an evolving e-liquid market, packaging standards that specifically reference the Consumer Product Safety Commission child-resistant packaging standard (codified at 16 CFR 1700.15 and 1700.20), stated penalties for violations, and an express grant of authority to an agency or department to enforce the statute.

RESULTS

As of January 15, 2015, 4 states had laws requiring child-resistant packaging for e-liquid containers (Illinois, Minnesota, New York, Vermont). By August 18, 2015, 12 additional states had enacted legislation requiring child-resistant packaging (Arkansas, Indiana, Maine, Missouri, New Mexico, North Carolina, North Dakota, Oregon, Tennessee, Utah, Virginia, Wyoming), 4 had introduced legislation on the topic but had not reached a final legislative outcome (Massachusetts, New Jersey, Ohio, Pennsylvania), 6 had introduced legislation that did not become law (California, Mississippi, New Hampshire, Rhode Island, Texas, Washington), and 3 had passed or introduced legislation that met the 4 benchmarks (Indiana, Minnesota, Washington; Table 1).

TABLE 1—

Summary of US State Legislation Requiring Child-Resistant Packaging of E-Liquid Containers: August 18, 2015

State	Meets All Benchmarks	Definition Encompasses Wide Variety of Products and Contemplates Evolving Market	Packaging Requirements Explicitly Cite Consumer Product Safety Commission Standard	Penalties (Retailer, Manufacturer, Civil, Criminal, Licensing Repercussions)	Express Grant of Authority to a State Entity to Enforce
Arkansasa	×	✓	×	✓	✓
California	×	×	×	✓	✓
Illinoisa	×	✓	×	×	✓
Indianaa	✓	✓	✓	✓	✓
Mainea	×	×	✓	✓	✓
Massachusetts	×	×	✓	✓	✓
Minnesotaa	✓	✓	✓	✓	✓
Mississippi	×	×	✓	✓	✓
Missouria,b	×	×	✓	✓	✓
New Hampshire	×	×	✓	✓	✓
New Jersey	×	×	×	✓	✓
New Mexicoa	×	×	✓	✓	✓
New Yorka	×	×	×	✓	✓
North Carolinaa	×	✓	×	✓	✓
North Dakotaa	×	×	✓	✓	✓
Ohio	×	×	✓	✓	✓
Oregona	×	✓	×	✓	✓
Pennsylvania	×	×	×	✓	✓
Rhode Island	×	✓	×	✓	✓
Tennesseea,c	×	×	✓	×	✓
Texas	×	×	×	×	✓
Utaha,d	×	✓	×	×	✓
Vermonta	×	×	×	✓	✓
Virginiaa	×	×	✓	✓	✓
Washington	✓	✓	✓	✓	✓
Wyominga	×	×	✓	✓	✓
Total, no.	3	9	14	22	26

^aState has enacted law.

^bMissouri also introduced HB 147 (2015) during the 2015 session; however, it was withdrawn and the bill text is not available for public access.

^cThe Tennessee Department of Agriculture has authority to adopt and enforce the penalties provision, which could include penalties for packaging violations. However, the enforcement subpart of the statute does not include an enumerated reference to the yet-to-be-determined packaging section.

^dThe statute requires the Utah Department of Health to establish electronic cigarette packaging standards with an effective date of July 1, 2016 (Utah Code Annotated §26-57-103).

DISCUSSION

Our benchmarks were chosen to assess the comprehensiveness and effectiveness of states’ legislation and its conformity with the Consumer Product Safety Commission standard. Citing directly to this child-resistant packaging standard is critical because it is widely used across many industries, and manufacturers are familiar with its specific requirements and testing procedures. Developing a state-specific standard could create inconsistencies between jurisdictions, hinder manufacturing and consumer protection, and lead to significant confusion for compliance inspectors.

The most effective child-resistant packaging provisions also expressly authorize an executive agency or department to enforce requirements and establish clear penalties for violations. Absent robust enforcement provisions, statutory requirements may have little practical effect. For instance, Maryland prohibited the sale of e-cigarettes to individuals younger than 18 years in 2012 but issued no citations for sales to minors in the subsequent 3 years. The reason for the lack of enforcement was simple: no executive agency was authorized or required to inspect retail establishments or issue citations for violating the statute.

To avoid confusion, statutory language should define e-liquid broadly enough to anticipate future product innovations. Originally, e-cigarettes closely resembled traditional cigarettes and contained nicotine derived from tobacco, but today they come in a plethora of designs and contain tobacco-derived nicotine, synthetic nicotine, or any number of other substances. Finally, to prevent packaging restrictions from applying to cessation aids, states should also include language exempting any FDA-approved smoking cessation products. Because the FDA’s advance notice of proposed rulemaking merely contemplates whether the federal government should require child-resistant packaging for e-liquid containers, it is prudent for states to continue to pass legislation requiring such measures. Future legislation should reflect the benchmarks outlined here.