…And How Other Cities are Dealing with this Growing Trend

By G. Ross Trindle, IIand Andrew Maiorano, Best Best & Krieger LLP.

Electronic cigarettes have been promoted as a safer alternative to cancer-causing tobacco products that can wean heavy smokers off their habit.  But this month, Los Angeles officials joined a growing list of cities that treat e-cigarettes just the same as regular cigarettes, banning their use in parks, restaurants and most workplaces.  The decision came after an impassioned, and at times highly personal, debate (according to published reports) at a city council meeting that highlighted the backlash the smokeless cigarettes have generated as their popularity grows.

Electronic cigarettes, often called e-cigarettes, are battery-operated devices designed to look like regular tobacco cigarettes. Like their conventional counterparts, electronic cigarettes contain nicotine.  They were invented in the 1960s, but they didn’t really take off until a decade ago. The Tobacco Vapor Electronic Cigarette Association now estimates that roughly four million Americans use the battery-powered cigs.

Here’s how they work: An atomizer heats a liquid containing nicotine, turning it into a vapor that can be inhaled and creating a vapor cloud that resembles cigarette smoke.  Manufacturers claim that electronic cigarettes are a safe alternative to conventional cigarettes. Starter kits usually run between $30 and $100. The estimated annual cost of replacement cartridges is about $600, compared with the more than $1,000 a year it costs to feed a pack-a-day tobacco cigarette habit, according to the Tobacco Vapor Electronic Cigarette Association.

More than 45 communities in California have included e-cigarette regulations in their smoking ordinances. Fifty-nine include e-cigarettes in their tobacco retailer license programs, meaning that those who want to sell e-cigarettes must obtain a license. Also, 21 jurisdictions have included e-cigarettes in smoking provisions that apply to housing complexes.  Los Angeles follows in the footsteps of New York City, Washington D.C., Chicago and Boston, as well as five states that have restricted ‘vaping’ in some way.  L.A.’s ban, however, will allow people to use e-cigarettes in vapor lounges, e-cigarette stores and for filming or theatrical purposes.

Currently, the U.S. Food and Drug Administration’s Center for Drug Evaluation and Research only regulates e-cigarettes that are marketed for therapeutic purposes.  The FDA, however, plans to regulate e-cigarettes but has not yet issued proposed rules. Right now, the agency simply states on its website that “e-cigarettes have not been fully studied so consumers currently don’t know the potential risks of e-cigarettes,” including how much nicotine or other chemicals are inhaled or if e-cigs “may lead young people to try … conventional cigarettes.”  A Centers for Disease Control and Prevention study found nearly 1.8 million young people had tried e-cigarettes, and the number of U.S. middle and high school student e-smokers doubled between 2011 and 2012.

Some municipalities are taking very aggressive positions.  Poway, for example, recently chose to broaden the definition of “smoking” in its municipal code to include e-cigarettes, and to extend its existing prohibition on “smoking” to include public buildings, grounds, parks and trails. The practical result of such action appears to be a ban on the use of e-cigs in these public areas. In justification of the ban, Poway cited the unknown health risks associated with extended use of e-cigs, the increasing popularity of the devices with minors who may then turn to using traditional cigarettes and concerns about enforcing smoke-free ordinances due to the difficulty in distinguishing between regular cigarettes and e-cigs.

The Long Beach City Council recently voted on an item requesting the city attorney draft an ordinance to include e-cigarettes and nicotine vapor devices in the municipal code’s definition of tobacco products, require e-cigarette businesses retain a tobacco retailer’s permit and ban the devices in designated “No Smoking” areas.

On the plus side for e-cigarettes, there is evidence that they can be used to help quit smoking, and you can buy them with progressively lower levels of nicotine, working down to zero. This month the City Council in Yakima, Washington voted down a proposal to ban e-cigarettes in public places because the majority said there was a lack of evidence that the nicotine-infused fumes are dangerous. The number of e-smokers is expected to quadruple in the next few years as smokers move away from the centuries-old tobacco cigarette.

While some in the medical industry argue that the tar and other chemicals in traditional cigarette smoke is what causes cancer, more definitive research is underway to determine the toxicity of e-cigarettes. The FDA and the National Institutes of Health recently issued grants to higher education institutions to conduct such research on the impact of e-cigarette vapor. One grantee is the University of Maryland, which received $19 million to provide scientific evidence as a baseline for the FDA to use in regulating e-cigarettes.

The National Association of Convenience Stores (NACS) is doing its part to help by encouraging its members to adopt a policy of treating these products as age restricted and follow the same applicable federal, state and local laws for verifying the age of the purchaser. The NACS has also committed to work with all appropriate federal organizations to ensure that convenience stores continue to play a leadership role in establishing guidelines for e-cigarettes and other age –restricted products.

California Health and Safety Code Section 119405 only prohibits the sale of e-cigarettes to minors, while expressly referencing that California law is subject to any federal regulation of the devices, including the regulations of the FDA. This current state of the law does not provide much guidance for local governments as they seek to deal with the growing popularity of vaping.

Local governments in California do have options, ranging from taking no action until the state and federal government issue more guidance and regulations for the industry, to an outright ban on the sale and manufacturing. The question does not appear to be whether the popularity of e-cigarettes will continue to grow, but instead it is where and how such growth will occur. At least for now, the answer rests with local governments.

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Trindle_Ross1G. Ross Trindle, III, is a partner in the Ontario office of Best Best & Krieger LLP where he heads the firm’s public safety group.  His practice focuses on public safety services and public liability defense in state and federal court.  He can be reached at ross.trindle@bbklaw.com.

Maiorano_AndrewAndrew “Andy” Maiorano is an associate with Best Best & Krieger LLP and is based in the firm’s Ontario office. He is a member of BB&K’s municipal law and special districts practices groups and represents water districts, fire districts and departments, and police departments across Southern California.  He can be reached at andrew.maiorano@bbklaw.com.