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Attorney General Kilmartin Legislation to Regulate E-Cigarettes Passes House

Legislation to require child-proof packaging and prohibit use on school property

Legislation filed on behalf of Attorney General Peter F. Kilmartin that would require child resistant packaging for e-liquid used in electronic nicotine-delivery systems such as e-cigarettes passed the Rhode Island House of Representatives on Tuesday. The legislation (H7427) is sponsored by Representative Helio Melo (D, District 64: East Providence).

Under current Rhode Island law, an electronic nicotine-delivery system is defined as an "electronic device that may be used to simulate smoking in the delivery of nicotine or other substance to a person inhaling from the device, and includes, but is not limited to, an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or electronic hookah and any related device and any cartridge or other component of such device." R.I. Gen. Laws 11-9-13.4 (15).

"The popularity and use of e-cigarettes and vaping products continues to rise. While the jury is still out on the health effects of e-cigarettes versus the known health traditional nicotine products, we can all agree that these products should be kept out of the hands of children," said Attorney General Kilmartin. "Most troubling is that these products especially e-liquids come in a variety of enticing flavors, such as candy crush and gummy bear, which appeal to children. There is currently no such regulation on this toxic product with respect to child-resistant packaging."

"Rhode Island children deserve better protection from a product that is both dangerous to them and made to taste and seem like candy. We should not accept this obvious risk, and must demand that manufacturers do a better job packaging their product in a way that helps keep it out of the mouths of small children," said Representative Helio Melo.

Attorney General Kilmartin's legislation would require all liquid "intended for human consumption and/or use in an electronic nicotine-delivery system" to be contained in child-resistant packaging. The term "child-resistant packaging", modeled after the definition of "special packaging" as defined by the federal Poison Prevention Packaging Act of 1970, would be defined as "packaging that is 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 and not difficult for normal adults to use properly, but does not mean packaging which all such children cannot open or obtain a toxic or harmful amount within a reasonable time."

On January 28, 2016, President Obama signed Senate Bill 142 entitled "Child Nicotine Poisoning Prevention Act of 2015." It will take effect on July 28, 2016. The Federal act directs the Consumer Product Safety Commission (CPSC) to promulgate a rule requiring liquid nicotine containers to be designed with special packaging that is difficult for children under five years of age to open or to obtain harmful contents from. Such rule is to be treated as a standard applicable to a household substance under the Poison Prevention Packaging Act of 1970.

Despite the Federal act and its anticipated regulations, it is important that Rhode Island law address this issue because the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals should be able to enforce violations of the child-resistant packaging requirements among licensed distributors. States across the country, including Massachusetts, New York and Vermont, require e-cigarette and vaping liquids to be packaged in child-resistant packaging. The proposed statutory language in the State Act provides that once a federal standard is enacted, that federal standard will be the regulatory standard under this Act to ensure uniformity for compliance.

According to the Tobacco Control Legal Consortium, nicotine is an acute toxin and exposure by swallowing or contact with the skin can result in nausea, vomiting, respiratory arrest, seizure and even death. The Centers for Disease Control ("CDC") report a dramatic increase in the number of calls related to e-cigarette liquid exposure, especially among children. According to a study released by the CDC in April 2014, the number of calls to poison centers involving e-cigarette liquids containing nicotine rose from one per month in September 2010 to 215 per month in February 2014. More than half, (51.1 percent) of the calls to poison centers due to e-cigarettes involved young children under the age of five, and about 42 percent of the poison calls involved people 20 years of age and older.

E-liquids contain nicotine in its purest form mixed with flavoring, coloring, and assorted chemicals, and can be extremely dangerous especially for children who may be attracted to them by their color and sweet, candy-like smell.

"We require child proof packaging on just about every over the counter drug, and we need to start regulating e-cigarettes and e-liquids with the same intensity to decrease the experimental or accidental exposure of this dangerous product to children," continued Kilmartin.

Kilmartin's bill would also prohibit use of electronic nicotine delivery systems on school property, the same way cigarettes are banned. "Schools were the first to go tobacco free. Yet, the current laws and policies do not adequately address the use of e-cigarettes and other vaping products on school grounds," said Kilmartin. "We need to develop a consistent policy that can be applied to all school districts across the state that will restore the integrity and the intent of the 'tobacco free' statutes, especially in relation to our schools."

A companion bill in the Senate (S2659) is sponsored by Senate Majority Leader Dominick Ruggerio (D, District 4: North Providence, Providence).

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