E-Cigarettes - Can They Be Used in Public Places or Places of Employment?
November 6, 2013
Category: Licensing and Regulation
In 2005, the voters approved Initiative 901, prohibiting smoking in public places and places of employment; that initiative is now codified in chapter 70.160 RCW. Under RCW 70.160.020(1), the terms “smoke” and “smoking” are defined to mean “the carrying or smoking of any kind of lighted pipe, cigar, cigarette, or any other lighted smoking equipment.” Since the initiative’s adoption, electronic cigarettes - or e-cigarettes - have become popular. Does the initiative apply to e-cigarettes?
What is an e-cigarette? According to Wikipedia, an e-cigarette
is an electronic inhaler meant to simulate and substitute for tobacco smoking. It generally utilizes a heating element that vaporizes a liquid solution. Some release nicotine, while some merely release flavored vapor. They are often designed to mimic traditional smoking implements, such as cigarettes or cigars, in their use and/or appearance.
If this description is accurate, would use of an e-cigarette be prohibited by the state law prohibiting smoking in public places or places of employment? In my opinion, probably not. The Initiative 901 definition of “smoke” or “smoking” makes reference to cigars, cigarette, pipes and other lighted smoking equipment. See RCW 70.160.020(1). But e-cigarettes are not lighted; they create vapor (rather than smoke) through heating - not burning - a liquid solution. The manner of their use does not appear to correspond with this statutory definition of "smoking." Even though the use of an e-cigarette may not be smoking, there may be health hazards regarding their use. The American Lung Association reports that, in lab tests conducted by the Food and Drug Administration (FDA) in 2009, detectable levels of toxic cancer-causing chemicals were found in some e-cigarettes. (E-cigarettes are not currently regulated by the FDA.) The Lung Association also warns that there may be risks from secondhand emissions, as two studies found formaldehyde, benzene, and tobacco-specific nitrosamines coming from secondhand emissions.
Given the health concerns, some local boards of health in the state and other jurisdictions have adopted or are considering adopting regulations controlling the use and/or sale of e-cigarettes. King County, for example, prohibits the sale of e-cigarettes to minors, the offer of free or discounted e-cigarettes, and the use of e-cigarettes in any area where smoking is prohibited by law. The Tacoma/Pierce County Board of Health has adopted similar restrictions, including limitations on the use of e-cigarettes in certain public places. Clark County prohibits the sale of e-cigarettes to minors and places limits on samples and the use of coupons, as does the City of Spokane. The Washington Attorney General, along with 41 other state attorneys general, recently wrote the FDA urging that agency to regulate e-cigarettes in the same manner as tobacco products are regulated. The desire to regulate e-cigarettes, however, is certainly not universal, and attempts to regulate them have drawn some spirited objections.
In response to my initial question, I conclude that a person could use an e-cigarette in a public place or place of employment without violating any current state law. If a local jurisdiction wishes to achieve a different result, as some have, it will need to adopt its own regulations addressing e-cigarettes.
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