II 

114TH CONGRESS 

1ST SESSION S. 430 

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

purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 10, 2015 

Mrs. BOXER (for herself, Mr. BLUMENTHAL, Mr. BROWN, Mr. DURBIN, Mr. 

MARKEY, Mr. MERKLEY, Mr. NELSON, Mr. SCHUMER, and Mr. WYDEN) 

introduced the following bill; which was read twice and referred to the 

Committee on Commerce, Science, and Transportation 

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’’. 

6 SEC. 2. FINDINGS; SENSE OF CONGRESS. 

7 (a) FINDINGS.—Congress makes the following find8 ings: 


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1 (1) According to the Food and Drug Adminis2 tration, because electronic cigarettes have not been 

3 fully studied, consumers currently do not know— 

4 (A) the potential risks of electronic ciga5 rettes when used as intended; 

6 (B) how much nicotine or other potentially 

7 harmful chemicals are being inhaled during use; 

8 or 

9 (C) if there are any benefits associated 

10 with using these products. 

11 (2) Most electronic cigarettes contain widely 

12 varying levels of nicotine, which is a highly addictive 

13 drug that impacts the cardiovascular system and can 

14 be lethal when delivered in high doses. 

15 (3) According to the Surgeon General, adoles16 cents are particularly vulnerable to the adverse ef17 fects of nicotine and adolescent exposure to nicotine 

18 may have lasting adverse consequences for brain de19 velopment. 

20 (4) Use of electronic cigarettes has risen in 

21 youth according to a study by the Centers for Dis22 ease Control and Prevention that was released in 

23 November 2014, which found that in two years, 

24 from 2011 to 2013, the percentage of middle and 


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1 high school students who had ever used electronic 

2 cigarettes tripled. 

3 (5) Electronic cigarette use may lead children 

4 to become addicted to nicotine and could be a gate5 way to various tobacco products. 

6 (6) Marketing of electronic cigarettes to youth 

7 is occurring in the form of advertising using car8 toons and sponsorships of events popular with youth 

9 such as concerts and sporting events. 

10 (7) According to a study published in June 

11 2014 in the journal Pediatrics, youth exposure to 

12 television advertisements for electronic cigarettes in13 creased by 256 percent during the 2011 to 2013 pe14 riod, exposing 24,000,000 children to such advertise15 ments. 

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.— 


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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 in subparagraph 

17 (A). 

18 (b) PROHIBITION.— 

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

20 promote, or market in commerce in a State de21 scribed in paragraph (2) an electronic cigarette in a 

22 manner that— 

23 (A) the person knows or should know is 

24 likely to contribute towards initiating or inVerDate Sep 11 2014 00:15 Feb 18, 2015 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S430.IS S430

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1 creasing the use of electronic cigarettes by chil2 dren who are younger than 18 years of age; or 

3 (B) the Federal Trade Commission deter4 mines, regardless of when or where the adver5 tising, promotion, or marketing occurs, affects 

6 or appeals to children described in subpara7 graph (A). 

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

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

10 electronic cigarette to a child who is younger than 

11 18 years of age is prohibited by a provision of Fed12 eral or State law. 

13 (c) ENFORCEMENT BY FEDERAL TRADE COMMIS14 SION.— 

15 (1) UNFAIR OR DECEPTIVE ACT OR PRAC16 TICE.—A violation of subsection (b)(1) shall be 

17 treated as a violation of a rule defining an unfair or 

18 deceptive act or practice described under section 

19 18(a)(1)(B) of the Federal Trade Commission Act 

20 (15 U.S.C. 57a(a)(1)(B)). 

21 (2) POWERS OF COMMISSION.— 

22 (A) IN GENERAL.—The Federal Trade 

23 Commission shall enforce this section in the 

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

25 same jurisdiction, powers, and duties as though 


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1 all applicable terms and provisions of the Fed2 eral Trade Commission Act (15 U.S.C. 41 et 

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

4 this section. 

5 (B) PRIVILEGES AND IMMUNITIES.—Any 

6 person who violates this section shall be subject 

7 to the penalties and entitled to the privileges 

8 and immunities provided in the Federal Trade 

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

10 (C) RULEMAKING.—The Federal Trade 

11 Commission shall promulgate standards and 

12 rules to carry out this section in accordance 

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

14 (d) ENFORCEMENT BY STATES.— 

15 (1) IN GENERAL.—In any case in which the at16 torney general of a State has reason to believe that 

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

18 is threatened or adversely affected by the engage19 ment of any person subject to subsection (b)(1) in 

20 a practice that violates such subsection, the attorney 

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

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

23 in an appropriate district court of the United 

24 States— 


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1 (A) to enjoin further violation of such sub2 section by such person; 

3 (B) to compel compliance with such sub4 section; 

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

6 compensation on behalf of such residents; 

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

8 considers appropriate; or 

9 (E) to obtain civil penalties in the amount 

10 determined under paragraph (2). 

11 (2) CIVIL PENALTIES.— 

12 (A) CALCULATION.—For purposes of im13 posing a civil penalty under paragraph (1)(E) 

14 with respect to a person who violates subsection 

15 (b)(1), the amount determined under this para16 graph is the amount calculated by multiplying 

17 the number of days that the person is not in 

18 compliance with subsection (b)(1) by an amount 

19 not greater than $16,000. 

20 (B) ADJUSTMENT FOR INFLATION.—Be21 ginning on the date on which the Bureau of 

22 Labor Statistics first publishes the Consumer 

23 Price Index after the date that is 1 year after 

24 the date of the enactment of this Act, and an25 nually thereafter, the amounts specified in subVerDate Sep 11 2014 00:15 Feb 18, 2015 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S430.IS S430

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1 paragraph (A) shall be increased by the per2 centage increase in the Consumer Price Index 

3 published on that date from the Consumer 

4 Price Index published the previous year. 

5 (3) RIGHTS OF FEDERAL TRADE COMMIS6 SION.— 

7 (A) NOTICE TO FEDERAL TRADE COMMIS8 SION.— 

9 (i) IN GENERAL.—Except as provided 

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

11 State shall notify the Federal Trade Com12 mission in writing that the attorney gen13 eral intends to bring a civil action under 

14 paragraph (1) not later than 10 days be15 fore initiating the civil action. 

16 (ii) CONTENTS.—The notification re17 quired by clause (i) with respect to a civil 

18 action shall include a copy of the complaint 

19 to be filed to initiate the civil action. 

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

21 for the attorney general of a State to pro22 vide the notification required by clause (i) 

23 before initiating a civil action under para24 graph (1), the attorney general shall notify 


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1 the Federal Trade Commission imme2 diately upon instituting the civil action. 

3 (B) INTERVENTION BY FEDERAL TRADE

4 COMMISSION.—The Federal Trade Commission 

5 may— 

6 (i) intervene in any civil action 

7 brought by the attorney general of a State 

8 under paragraph (1); and 

9 (ii) upon intervening— 

10 (I) be heard on all matters aris11 ing in the civil action; and 

12 (II) file petitions for appeal of a 

13 decision in the civil action. 

14 (4) INVESTIGATORY POWERS.—Nothing in this 

15 subsection may be construed to prevent the attorney 

16 general of a State from exercising the powers con17 ferred on the attorney general by the laws of the 

18 State to conduct investigations, to administer oaths 

19 or affirmations, or to compel the attendance of wit20 nesses or the production of documentary or other 

21 evidence. 

22 (5) PREEMPTIVE ACTION BY FEDERAL TRADE

23 COMMISSION.—If the Federal Trade Commission in24 stitutes a civil action or an administrative action 

25 with respect to a violation of subsection (b)(1), the 


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1 attorney general of a State may not, during the 

2 pendency of such action, bring a civil action under 

3 paragraph (1) against any defendant named in the 

4 complaint of the Commission for the violation with 

5 respect to which the Commission instituted such ac6 tion. 

7 (6) VENUE; SERVICE OF PROCESS.— 

8 (A) VENUE.—Any action brought under 

9 paragraph (1) may be brought in— 

10 (i) the district court of the United 

11 States that meets applicable requirements 

12 relating to venue under section 1391 of 

13 title 28, United States Code; or 

14 (ii) another court of competent juris15 diction. 

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

17 brought under paragraph (1), process may be 

18 served in any district in which the defendant— 

19 (i) is an inhabitant; or 

20 (ii) may be found. 

21 (7) ACTIONS BY OTHER STATE OFFICIALS.— 

22 (A) IN GENERAL.—In addition to civil ac23 tions brought by attorneys general under para24 graph (1), any other officer of a State who is 

25 authorized by the State to do so may bring a 


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

2 same requirements and limitations that apply 

3 under this subsection to civil actions brought by 

4 attorneys general. 

5 (B) SAVINGS PROVISION.—Nothing in this 

6 subsection may be construed to prohibit an au7 thorized official of a State from initiating or 

8 continuing any proceeding in a court of the 

9 State for a violation of any civil or criminal law 

10 of the State. 

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

12 construed to limit or diminish the authority of the Food 

13 and Drug Administration to regulate the marketing of 

14 electronic cigarettes, including the marketing of electronic 

15 cigarettes to children. 

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

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

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

19 provision of law is inconsistent with the provisions of this 

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

Æ 


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