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What Lawyers Need To Know About Electronic Tobacco


I consider myself to be somewhat of a cigar aficionado; for those of you who are interested, I highly recommend trying a Montecristo Number 2 (you won’t be disappointed). It’s well-settled law at this point that my interest in cigar smoking is generally relegated to sparse and difficult-to-find cigar lounges with a few close personal friends or secret meetings (if you will, those smoke-filled back rooms) with these same close friends away from public viewing.

But take heart my cigar smoking brethren: a new technology has burst onto the scene that could potentially make smoking couture again, and it isn’t just smoke and mirrors.

E-cigarettes, or electronic cigarettes, are battery-powered devices that turn liquified nicotine and other combustibles into a vapor that the user then inhales. In fact a whole new subculture has been developed by young people who call themselves Vapers, or Vapes for short.

According to the Milwaukee Journal Sentinel, retail sales of e-cigarettes have tripled over a two-year period, to an estimated $1.8 billion last year.

While some states have imposed restrictions or bans on where e-cigaretts or e-cigars can be used, there currently is no federal law in place and the local laws and ordinances are murky at best. Many local bans and ordinances opposing e-cigarette or e-cigar use state that these devices should be banned wherever general smoking is prohibited.

In short, e-smoking or vaping is rapidly creating an entirely new field in the legal world where the vortex between legal norms and legislatively controlled substances intersect. Recent case law is indeed leaning toward vitiating the inclusion of e-smoking into these general smoking bans. See: The Matter of Kuhn at the local level and Smoking Everywhere, Inc. v. US Food and Drug Administration at the federal level.

Smoking bans are enacted to protect the public from the harm of secondhand smoke, but e-cigarettes have not been shown to cause harm to bystanders. In fact, all evidence to date shows that the low health risks associated with e-smoking is comparable to other smokeless nicotine products.

Let me provide some additional ammunition for those of you looking to defend a client from an onerous e-smoking ban:

  • The low risks of e-tobacco is supported by research done by Dr. Siegel of Boston University, Dr. Eissenberg of Virginia Commonwealth, Dr Maciej L Goniewicz of the Roswell Park Cancer Institute, Dr. Laugesen of Health New Zealand, Dr. Igor Burstyn of Drexel University, and by the fact that the FDA testing, in spite of its press statement, failed to find harmful levels of carcinogens or toxic levels of any chemical in the vapor.
  • A comprehensive review conducted by Dr. Igor Burstyn of Drexel University School of Public Health based on over 9,000 observations of e-cigarette liquid and vapor found “no apparent concern” for bystanders exposed to e-cigarette vapor, even under “worst case” assumptions about exposure.
  • Electronic cigarette and cigar use is easy to distinguish from actual smoking. Although some e-cigarettes resemble real cigarettes, many do not. It is easy to tell when someone lights a cigarette from the smell of smoke. E-cigarette vapor is practically odorless, and generally any detectable odor is not unpleasant and smells nothing like smoke. Additionally, e-smoking users can decide whether to release any vapor (“discreet vaping”). With so little evidence of use, enforcing use bans on electronic cigarettes would be nearly impossible.
  • Currently there is no California or federal law that restricts where people can use e-smoking accessories. Unless your local smoke-free law defines “smoking” to include e-cigarette or e-cigar use, the use of this product may be legal in places where smoking cigarettes is prohibited.

According to a new report by XpertHR, employers and management can find themselves in new legal territory when dealing with employees who might want to “vape” while at work or on a break. XpertHR recommends advising clients to have an “Acceptable Use of E-Cigarettes” policy in place with their existing employee manuals and I would even go so far as to have clients who deal with the public provide visible notice to their customers and clientele regarding an e-cigarette policy in order to minimize public liability.

For some people, electronic tobacco will never be able to replace the real thing. Nevertheless, I believe this new electronic tobacco technology has given rise to a healthy public discussion as to what reasonable tobacco regulation should look like. Now, if you’ll excuse me, I’m late for a meeting in a smoke-filled backroom with some close friends to discuss the future of electronic tobacco policy.

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