February 25, 2019

On February 20, 2019, Staff issued a nicotine packaging letter announcing that the Commission plans to issue guidance on testing parameters for meeting the restricted flow requirements of 16 C.F.R. § 1700.15(d).  While we are pleased to see agency attention to this matter, this letter falls short of immediate enforcement of the full scope of special packaging requirements mandated under the Child Nicotine Poisoning Prevention Act of 2015.  While additional guidance on testing parameters for the restricted flow requirement may be useful, such guidance is not necessary as the plain language of 16 C.F.R. § 1700.15(d) is itself a performance standard.  Therefore, the development of additional test parameters is not a prerequisite to enforcement and imposes an unnecessary delay to remove noncompliant product from the marketplace.  Further, because the letter implies that the agency will only take some future action starting at an unspecified date, we are concerned that this announcement encourages the marketplace to liquidate noncompliant product, including through discounting, rather than the immediate removal or discontinuation of such product from inventory.