SS February 2016

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46 SMOKESHOP February 2016 demonstration on how to open the pack- age. If the child is successful, that child's test is counted as a failure. At least 85 percent of the children tested must be unable to open the product before the demonstration, and at least 80 percent afterwards. These tests results are docu- mented in a report. There are companies that specialize in these tests and that offer approved packaging solutions. CONTINUED FDA AUTHORITY OVER PACKAGING The law expressly preserves the FDA's authority to implement its own child-re- sistant packaging standards for vapor products. Thus, while the Child Nico- tine Poisoning Prevention Act exempts closed systems from its coverage, the FDA potentially could implement its own child safety requirements for closed systems, or even additional require- ments for open systems. However, if the FDA implements its own standards for e-liquid, it must consult with the CPSC regarding such standards. OTHER PACKAGING STANDARDS FOR VAPOR PRODUCTS Even before the Child Nicotine Poisoning Prevention Act passed, a number of states implemented their own child safety stan- dards for vapor products. Many of these state requirements mimic the federal re- quirements, and indeed expressly incor- porate the CPSC's regulations. Arkansas, Minnesota, Vermont, and Indiana have all passed laws that expressly incorporate the CPSC's regulations. The Massachu- setts Attorney General has issued e-cig- arette regulations that incorporate the CPSC's regulations. The standards imple- mented in New Mexico and North Caroli- na are very similar to the CPSC's require- ments, although the CPSC's requirements are not specifically incorporated into those states' laws. Finally, Utah and Ore- gon have delegated child-packaging reg- ulation authority to their respective state health departments. Although most of the state requirements specifically apply only to open systems, in some cases the laws are unclear and may potentially ap- ply to closed systems as well. NEXT STEPS Manufacturers, importers, and distribu- tors of e-liquid should take proactive mea- sures to ensure their products are compli- ant with the new federal requirements, including undertaking the required test- ing to comply with the CPSC regulations by July of this year. Companies that sell vapor products in the states that have al- ready implemented child-resistance stan- dards should similarly review whether their products are compliant. Troutman Sanders Tobacco Team, Troutman Sanders LLP, 1001 Haxall Point, Richmond, Va. 23219, Tel: (804) 697-2206, Fax: (804) 697-1339, Web:, Email: REGULATION FOCUS > > Above: Child Nicotine Poisoning Prevention Act-compliant packaging currently in use by Johnson Creek, featuring child- resistant dropper caps and bottles with shrink banding—a tamper-evident seal that give consumers (and supply chains) a visual assurance that product is in factory condition. > Companies that sell vapor products in the states that have already implemented child- resistance standards should similarly review whether their products are compliant. > Below: Limited release 125mL Dripper Series 125mL Flask from Hollywood, Fla.-based Element eliquids, which sells to the British market. Since February 2014, regulations have been in place in the European Union requiring child- proof and tamper-evident for packaging for e-liquid.

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