15 U.S.C. § 1473 — Conventional packages, marketing

Page 1418 TITLE 15—COMMERCE AND TRADE § 1473 (A) authority under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) and the Family Smoking Prevention and Tobacco Control Act (Public Law 111–31) and the amendments made by such Act; and (B) authority for the rulemaking entitled ‘‘Deeming Tobacco Products to Be Subject to the Federal Food, Drug, and Cosmetic Act, as Amended by the Family Smoking Prevention and Tobacco Control Act; regula- tions on the Sale and Distribution of To- bacco Products and the Required Warning Statements for Tobacco Products’’ (April 2014) (FDA–2014–N–0189), the rulemaking en- titled ‘‘Nicotine Exposure Warnings and Child-Resistant Packaging for Liquid Nico- tine, Nicotine-Containing E-Liquid(s), and Other Tobacco Products’’ (June 2015) (FDA–2015–N–1514), and subsequent actions by the Secretary regarding packaging of liq- uid nicotine containers. (2) Consultation If the Secretary of Health and Human Serv- ices adopts, maintains, enforces, or imposes or continues in effect any packaging requirement for liquid nicotine containers, including a child-resistant packaging requirement, the Secretary shall consult with the Commission, taking into consideration the expertise of the Commission in implementing and enforcing this section and the Poison Prevention Pack- aging Act of 1970 (15 U.S.C. 1471 et seq.). (c) Applicability Notwithstanding section 2052(a)(5) of this title and section 1261(f)(2) of this title, the require- ment of subsection (a) shall be treated as a standard for the special packaging of a house- hold substance established under section 3(a) of the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1472(a)). (d) Definitions In this section: (1) Commission The term ‘‘Commission’’ means the Con- sumer Product Safety Commission. (2) Liquid nicotine container (A) In general Notwithstanding section 1261(f)(2) of this title and section 2052(a)(5) of this title, the term ‘‘liquid nicotine container’’ means a package (as defined in section 2 of the Poi- son Prevention Packaging Act of 1970 (15 U.S.C. 1471))— (i) from which nicotine in a solution or other form is accessible through normal and foreseeable use by a consumer; and (ii) that is used to hold soluble nicotine in any concentration. (B) Exclusion The term ‘‘liquid nicotine container’’ does not include a sealed, pre-filled, and dispos- able container of nicotine in a solution or other form in which such container is in- serted directly into an electronic cigarette, electronic nicotine delivery system, or other similar product, if the nicotine in the con- tainer is inaccessible through customary or reasonably foreseeable handling or use, in- cluding reasonably foreseeable ingestion or other contact by children. (3) Nicotine The term ‘‘nicotine’’ means any form of the chemical nicotine, including any salt or com- plex, regardless of whether the chemical is naturally or synthetically derived. (Pub. L. 114–116, § 2, Jan. 28, 2016, 130 Stat. 3.) Editorial Notes REFERENCES IN TEXT The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (b)(1), is act June 25, 1938, ch. 675, 52 Stat. 1040, which is classified generally to chapter 9 (§ 301 et seq.) of Title 21, Food and Drugs. For complete classi- fication of this Act to the Code, see section 301 of Title 21 and Tables. The Family Smoking Prevention and Tobacco Con- trol Act, referred to in subsec. (b)(1), is div. A of Pub. L. 111–31, June 22, 2009, 123 Stat. 1776. For complete classification of this Act to the Code, see Short Title of 2009 Amendment note set out under section 301 of Title 21, Food and Drugs, and Tables. The Poison Prevention Packaging Act of 1970, re- ferred to in subsec. (b)(2), is Pub. L. 91–601, Dec. 30, 1970, 84 Stat. 1670, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1471 of this title and Tables. CODIFICATION Section was enacted as part of the Child Nicotine Poisoning Prevention Act of 2015, and not as part of the Poison Prevention Packaging Act of 1970 which com- prises this chapter. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 114–116, § 3, Jan. 28, 2016, 130 Stat. 5, provided that: ‘‘This Act [see Short Title of 2016 Amendment note set out under section 1471 of this title] shall take effect on the date that is 180 days after the date of the enactment of this Act [Jan. 28, 2016].’’ § 1473. Conventional packages, marketing (a) Noncomplying packages for elderly or handi- capped persons; labeling statements For the purpose of making any household sub- stance which is subject to a standard established under section 1472 of this title readily available to elderly or handicapped persons unable to use such substance when packaged in compliance with such standard, the manufacturer or packer, as the case may be, may package any household substance, subject to such a standard, in pack- aging of a single size which does not comply with such standard if— (1) the manufacturer (or packer) also sup- plies such substance in packages which com- ply with such standard; and (2) the packages of such substance which do not meet such standard bear conspicuous la- beling stating: ‘‘This package for households without young children’’; except that the Commission may by regulation prescribe a substitute statement to the same effect for packaging too small to accommodate such la- beling. Page 1419 TITLE 15—COMMERCE AND TRADE § 1474 (b) Noncomplying packages for substances dis- pensed pursuant to orders of medical practi- tioners In the case of a household substance which is subject to such a standard and which is dis- pensed pursuant to an order of physician, den- tist, or other licensed medical practitioner au- thorized to prescribe, such substance may be dispensed in noncomplying packages only when directed in such order or when requested by the purchaser. (c) Exclusive use of special packaging; necessary circumstances In the case of a household substance subject to such a standard which is packaged under sub- section (a) in a noncomplying package, if the Commission determines that such substance is not also being supplied by a manufacturer (or packer) in popular size packages which comply with such standard, it may, after giving the manufacturer (or packer) an opportunity to comply with the purposes of this Act, by order require such substance to be packaged by such manufacturer (or packer) exclusively in special packaging complying with such standard if it finds, after opportunity for hearing, that such exclusive use of special packaging is necessary to accomplish the purposes of this Act. (Pub. L. 91–601, § 4, Dec. 30, 1970, 84 Stat. 1671; Pub. L. 92–573, § 30(a), Oct. 27, 1972, 86 Stat. 1231.) Editorial Notes REFERENCES IN TEXT For classification to the Code of ‘‘this Act’’, referred to in subsec. (c), see References in Text note set out under section 1471 of this title. Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS ‘‘Commission’’ substituted for ‘‘Secretary’’ in sub- secs. (a) and (c) and ‘‘it’’ substituted for ‘‘he’’ in subsec. (c) pursuant to section 30(a) of Pub. L. 92–573, which is classified to section 2079(a) of this title and which transferred functions of Secretary of Health, Edu- cation, and Welfare under this chapter to Consumer Product Safety Commission. § 1474. Regulations for special packaging stand- ards (a) Rule making procedure; election and applica- tion of procedure under section 371 of title 21; publication of election and proposal Proceedings to issue, amend, or repeal a regu- lation prescribing a standard under section 1472 of this title shall be conducted in accordance with the procedures prescribed by section 553 (other than paragraph (3)(B) of the last sentence of subsection (b) of such section) of title 5 unless the Commission elects the procedures prescribed by subsection (e) of section 371 of title 21, in which event such subsection and subsections (f) and (g) of such section 371 shall apply to such proceedings. If the Commission makes such elec- tion, it shall publish that fact with the proposal required to be published under paragraph (1) of such subsection (e). (b) Judicial review; petition; record; additional evidence; jurisdiction of court of appeals; scope of review; relief pending review; final- ity of judgment; review by Supreme Court (1) In the case of any standard prescribed by a regulation issued in accordance with section 553 of title 5, any person who will be adversely af- fected by such a standard may, at any time prior to the 60th day after the regulation prescribing such standard is issued by the Commission, file a petition with the United States Court of Ap- peals for the circuit in which such person resides or has his principal place of business for a judi- cial review of such standard. A copy of the peti- tion shall be forthwith transmitted by the clerk of the court to the Commission or other officer designated by it for that purpose. The Commis- sion shall file in the court the record of the pro- ceedings on which the Commission based its standard, as provided in section 2112 of title 28. (2) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such addi- tional evidence is material and that there was no opportunity to adduce such evidence in the proceeding before the Commission, the court may order such additional evidence (and evi- dence in rebuttal thereof) to be taken before the Commission in a hearing or in such other man- ner, and upon such terms and conditions, as to the court may seem proper. The Commission may modify its findings as to the facts, or make new findings, by reason of the additional evi- dence so taken, and it shall file such modified or new findings, and its recommendation, if any, for the modification or setting aside of its origi- nal standard, with the return of such additional evidence. (3) Upon the filing of the petition under para- graph (1) of this subsection the court shall have jurisdiction to review the standard of the Com- mission in accordance with subparagraphs (A), (B), (C), and (D) of paragraph (2) of section 706 of title 5. If the court ordered additional evidence to be taken under paragraph (2) of this sub- section, the court shall also review the Commis- sion’s standard to determine if, on the basis of the entire record before the court pursuant to paragraphs (1) and (2) of this subsection, it is supported by substantial evidence. If the court finds the standard is not so supported, the court may set it aside. (4) With respect to any standard reviewed under this subsection, the court may grant ap- propriate relief pending conclusion of the review proceedings, as provided in section 705 of such title 5. (5) The judgment of the court affirming or set- ting aside, in whole or in part, any such stand- ard of the Commission shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification, as pro- vided in section 1254 of title 28. (Pub. L. 91–601, § 5, Dec. 30, 1970, 84 Stat. 1671; Pub. L. 92–573, § 30(a), Oct. 27, 1972, 86 Stat. 1231.) Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS In subsec. (a), ‘‘Commission’’ substituted for ‘‘Sec- retary’’ and ‘‘it’’ substituted for ‘‘he’’; in subsec. (b),