I 

114TH CONGRESS 

1ST SESSION H. R. 478 

To prohibit the marketing of electronic cigarettes to children, and for other 

purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 22, 2015 

Ms. ESTY (for herself, Ms. DEGETTE, Mrs. BUSTOS, Mr. RUIZ, Ms. 

DELAURO, Mr. CA ́RDENAS, Mr. CARNEY, Ms. CLARK of Massachusetts, 

Mr. DELANEY, Mr. DEUTCH, Mr. ELLISON, Ms. FRANKEL of Florida, 

Mr. HASTINGS, Mr. HONDA, Mr. JOHNSON of Georgia, Mr. LARSON of 

Connecticut, Ms. LEE, Mr. LEVIN, Mr. LOWENTHAL, Ms. MATSUI, Mr. 

MCGOVERN, Ms. MENG, Mr. PETERS, Mr. RANGEL, Ms. ROYBALALLARD, Mr. RUSH, Ms. SCHAKOWSKY, Ms. SLAUGHTER, Mr. 

SWALWELL of California, Mr. TAKANO, Ms. WASSERMAN SCHULTZ, Mr. 

THOMPSON of California, and Mr. COURTNEY) introduced the following 

bill; which was referred to the Committee on Energy and Commerce 

A BILL 

To prohibit the marketing of electronic cigarettes to children, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protecting Children 

5 from Electronic Cigarette Advertising Act of 2015’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
2 

•HR 478 IH

1 SEC. 2. FINDINGS; SENSE OF CONGRESS. 

2 (a) FINDINGS.—Congress makes the following find3 ings: 

4 (1) According to the Food and Drug Adminis5 tration, because electronic cigarettes have not been 

6 fully studied, consumers currently do not know— 

7 (A) the potential risks of electronic ciga8 rettes when used as intended; 

9 (B) how much nicotine or other potentially 

10 harmful chemicals are being inhaled during use; 

11 or 

12 (C) if there are any benefits associated 

13 with using these products. 

14 (2) Most electronic cigarettes contain widely 

15 varying levels of nicotine, which is a highly addictive 

16 drug that impacts the cardiovascular system and can 

17 be lethal when delivered in high doses. 

18 (3) According to the Surgeon General, adoles19 cents are particularly vulnerable to the adverse ef20 fects of nicotine and adolescent exposure to nicotine 

21 may have lasting adverse consequences for brain de22 velopment. 

23 (4) Use of electronic cigarettes has risen in 

24 youth according to a study by the Centers for Dis25 ease Control and Prevention that was released in 

26 November 2014, which found that in two years, 


SSpencer on DSK4SPTVN1PROD with BILLS
3 

•HR 478 IH

1 from 2011 to 2013, the percentage of middle and 

2 high school students who had ever used electronic 

3 cigarettes tripled. 

4 (5) Electronic cigarette use may lead children 

5 to become addicted to nicotine and could be a gate6 way to various tobacco products. 

7 (6) Marketing of electronic cigarettes to youth 

8 is occurring in the form of advertising using car9 toons and sponsorships of events popular with youth 

10 such as concerts and sporting events. 

11 (7) According to a study published in June 

12 2014 in the journal Pediatrics, youth exposure to 

13 television advertisements for electronic cigarettes in14 creased by 256 percent from 2011 to 2013, exposing 

15 24 million children to such advertisements. 

16 (b) SENSE OF CONGRESS.—It is the sense of Con17 gress that the Federal Trade Commission should prohibit 

18 the advertising, promoting, and marketing in commerce 

19 of electronic cigarettes to children as an unfair or decep20 tive act or practice, in order to protect the health of the 

21 youth of the United States. 

22 SEC. 3. PROHIBITION ON MARKETING OF ELECTRONIC 

23 CIGARETTES TO CHILDREN. 

24 (a) ELECTRONIC CIGARETTE DEFINED.— 


SSpencer on DSK4SPTVN1PROD with BILLS
4 

•HR 478 IH

1 (1) IN GENERAL.—Except as provided in para2 graph (2), in this section, the term ‘‘electronic ciga3 rette’’ means any electronic device that delivers nico4 tine, flavor, or other chemicals via a vaporized solu5 tion to the user inhaling from the device, including 

6 any component, liquid, part, or accessory of such a 

7 device, whether or not sold separately. 

8 (2) EXCEPTION.—In this section, the term 

9 ‘‘electronic cigarette’’ shall not include any product 

10 that— 

11 (A) has been approved by the Food and 

12 Drug Administration for sale as a tobacco ces13 sation product or for other therapeutic pur14 poses; and 

15 (B) is marketed and sold solely for a pur16 pose approved as described subparagraph (A). 

17 (b) PROHIBITION.— 

18 (1) IN GENERAL.—No person may advertise, 

19 promote, or market in commerce in a State de20 scribed in paragraph (2) an electronic cigarette in a 

21 manner that— 

22 (A) the person knows or should know is 

23 likely to contribute towards initiating or in24 creasing the use of electronic cigarettes by chil25 dren who are younger than 18 years of age; or 


SSpencer on DSK4SPTVN1PROD with BILLS
5 

•HR 478 IH

1 (B) the Federal Trade Commission deter2 mines, regardless of when or where the adver3 tising, promotion, or marketing occurs, affects 

4 or appeals to children described in subpara5 graph (A). 

6 (2) COVERED STATES.—A State described in 

7 this paragraph is a State in which the sale of an 

8 electronic cigarette to a child who is younger than 

9 18 years of age is prohibited by a provision of Fed10 eral or State Law. 

11 (c) ENFORCEMENT BY FEDERAL TRADE COMMIS12 SION.— 

13 (1) UNFAIR OR DECEPTIVE ACT OR PRAC14 TICE.—A violation of subsection (b) shall be treated 

15 as a violation of a rule defining an unfair or decep16 tive act or practice described under section 

17 18(a)(1)(B) of the Federal Trade Commission Act 

18 (15 U.S.C. 57a(a)(1)(B)). 

19 (2) POWERS OF COMMISSION.— 

20 (A) IN GENERAL.—The Federal Trade 

21 Commission shall enforce this section in the 

22 same manner, by the same means, and with the 

23 same jurisdiction, powers, and duties as though 

24 all applicable terms and provisions of the Fed25 eral Trade Commission Act (15 U.S.C. 41 et 


SSpencer on DSK4SPTVN1PROD with BILLS
6 

•HR 478 IH

1 seq.) were incorporated into and made a part of 

2 this section. 

3 (B) PRIVILEGES AND IMMUNITIES.—Any 

4 person who violates this section shall be subject 

5 to the penalties and entitled to the privileges 

6 and immunities provided in the Federal Trade 

7 Commission Act (15 U.S.C. 41 et seq.). 

8 (C) RULEMAKING.—The Federal Trade 

9 Commission shall promulgate standards and 

10 rules to carry out this section in accordance 

11 with section 553 of title 5, United States Code. 

12 (d) ENFORCEMENT BY STATES.— 

13 (1) IN GENERAL.—In any case in which the at14 torney general of a State has reason to believe that 

15 an interest of the residents of the State has been or 

16 is threatened or adversely affected by the engage17 ment of any person subject to subsection (b) in a 

18 practice that violates such subsection, the attorney 

19 general of the State may, as parens patriae, bring 

20 a civil action on behalf of the residents of the State 

21 in an appropriate district court of the United 

22 States— 

23 (A) to enjoin further violation of such sub24 section by such person; 


SSpencer on DSK4SPTVN1PROD with BILLS
7 

•HR 478 IH

1 (B) to compel compliance with such sub2 section; 

3 (C) to obtain damages, restitution, or other 

4 compensation on behalf of such residents; 

5 (D) to obtain such other relief as the court 

6 considers appropriate; or 

7 (E) to obtain civil penalties in the amount 

8 determined under paragraph (2). 

9 (2) CIVIL PENALTIES.— 

10 (A) CALCULATION.—For purposes of im11 posing a civil penalty under paragraph (1)(E) 

12 with respect to a person who violates subsection 

13 (b), the amount determined under this para14 graph is the amount calculated by multiplying 

15 the number of days that the person is not in 

16 compliance with subsection (b) by an amount 

17 not greater than $16,000. 

18 (B) ADJUSTMENT FOR INFLATION.—Be19 ginning on the date on which the Bureau of 

20 Labor Statistics first publishes the Consumer 

21 Price Index after the date that is 1 year after 

22 the date of the enactment of this Act, and an23 nually thereafter, the amounts specified in sub24 paragraph (A) shall be increased by the per25 centage increase in the Consumer Price Index 


SSpencer on DSK4SPTVN1PROD with BILLS
8 

•HR 478 IH

1 published on that date from the Consumer 

2 Price Index published the previous year. 

3 (3) RIGHTS OF FEDERAL TRADE COMMIS4 SION.— 

5 (A) NOTICE TO FEDERAL TRADE COMMIS6 SION.— 

7 (i) IN GENERAL.—Except as provided 

8 in clause (iii), the attorney general of a 

9 State shall notify the Federal Trade Com10 mission in writing that the attorney gen11 eral intends to bring a civil action under 

12 paragraph (1) not later than 10 days be13 fore initiating the civil action. 

14 (ii) CONTENTS.—The notification re15 quired by clause (i) with respect to a civil 

16 action shall include a copy of the complaint 

17 to be filed to initiate the civil action. 

18 (iii) EXCEPTION.—If it is not feasible 

19 for the attorney general of a State to pro20 vide the notification required by clause (i) 

21 before initiating a civil action under para22 graph (1), the attorney general shall notify 

23 the Federal Trade Commission imme24 diately upon instituting the civil action. 


SSpencer on DSK4SPTVN1PROD with BILLS
9 

•HR 478 IH

1 (B) INTERVENTION BY FEDERAL TRADE

2 COMMISSION.—The Federal Trade Commission 

3 may— 

4 (i) intervene in any civil action 

5 brought by the attorney general of a State 

6 under paragraph (1); and 

7 (ii) upon intervening— 

8 (I) be heard on all matters aris9 ing in the civil action; and 

10 (II) file petitions for appeal of a 

11 decision in the civil action. 

12 (4) INVESTIGATORY POWERS.—Nothing in this 

13 subsection may be construed to prevent the attorney 

14 general of a State from exercising the powers con15 ferred on the attorney general by the laws of the 

16 State to conduct investigations, to administer oaths 

17 or affirmations, or to compel the attendance of wit18 nesses or the production of documentary or other 

19 evidence. 

20 (5) PREEMPTIVE ACTION BY FEDERAL TRADE

21 COMMISSION.—If the Federal Trade Commission in22 stitutes a civil action or an administrative action 

23 with respect to a violation of subsection (b), the at24 torney general of a State may not, during the pend25 ency of such action, bring a civil action under paraVerDate Sep 11 2014 06:48 Jan 28, 2015 Jkt 049200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H478.IH H478

SSpencer on DSK4SPTVN1PROD with BILLS
10 

•HR 478 IH

1 graph (1) against any defendant named in the com2 plaint of the Commission for the violation with re3 spect to which the Commission instituted such ac4 tion. 

5 (6) VENUE; SERVICE OF PROCESS.— 

6 (A) VENUE.—Any action brought under 

7 paragraph (1) may be brought in— 

8 (i) the district court of the United 

9 States that meets applicable requirements 

10 relating to venue under section 1391 of 

11 title 28, United States Code; or 

12 (ii) another court of competent juris13 diction. 

14 (B) SERVICE OF PROCESS.—In an action 

15 brought under paragraph (1), process may be 

16 served in any district in which the defendant— 

17 (i) is an inhabitant; or 

18 (ii) may be found. 

19 (7) ACTIONS BY OTHER STATE OFFICIALS.— 

20 (A) IN GENERAL.—In addition to civil ac21 tions brought by attorneys general under para22 graph (1), any other officer of a State who is 

23 authorized by the State to do so may bring a 

24 civil action under paragraph (1), subject to the 

25 same requirements and limitations that apply 


SSpencer on DSK4SPTVN1PROD with BILLS
11 

•HR 478 IH

1 under this subsection to civil actions brought by 

2 attorneys general. 

3 (B) SAVINGS PROVISION.—Nothing in this 

4 subsection may be construed to prohibit an au5 thorized official of a State from initiating or 

6 continuing any proceeding in a court of the 

7 State for a violation of any civil or criminal law 

8 of the State. 

9 (e) CONSTRUCTION.—Nothing in this section shall be 

10 construed to limit or diminish the authority of the Food 

11 and Drug Administration to regulate the marketing of 

12 electronic cigarettes, including the marketing of electronic 

13 cigarettes to children. 

14 (f) RELATION TO STATE LAW.—This section shall 

15 not be construed as superseding, altering, or affecting any 

16 provision of law of a State, except to the extent that such 

17 provision of law is inconsistent with the provisions of this 

18 section, and then only to the extent of the inconsistency. 

Æ 


SSpencer on DSK4SPTVN1PROD with BILLS