What if they passed a law but nobody knew it?
That’s one of our concerns with Coconino County health department regulations on electronic cigarettes that very few people know exist.
In 2011, the supervisors added e-cigarettes to the existing ban on public smoking, reasoning that nicotine was a tobacco product. At the time, e-cigarettes were a rarity in bars and restaurants.
But three years later, the trend has caught on — sales in 2013 totaled $2 billion — and more smokers are switching from regular cigarettes to the electronic variety. Some public health advocates initially applauded the trend, saying it is healthier for smokers’ lungs by eliminating the tar and other smoke toxins being inhaled from tobacco. Bystanders also are not exposed to the smoke.
But others say the nicotine being vaporized and inhaled is not only addictive but a potential hazard if ingested in its liquid form.
So what is a bar or restaurant owner to do if someone lights up an e-cigarette? And what if somone objects?
In unincorporated parts of the county, the e-cigarette smoker is breaking the law. But because it is enforced on a complaint-only basis, the owner has discretion in whether to ask the offender to stop.
But if another patron objects, then an owner or manager has a duty under the law to end the smoking — assuming any of the parties is aware the prohibition exists.
As we reported earlier this month, the county’s e-cigarette ban is not well-known among businesses where patrons are likely to violate it. The reason appears to be limited publicity and the fact that no high-profile test case has arisen.
And in Flagstaff, which has its own smoking ban, e-cigarettes are not mentioned in the 2005 law and therefore not covered in the ban.
That doesn’t mean businesses and agencies in Flagstaff can’t take action on their own. FUSD, FMC and NAU, among others, have already banned them.
Now, the county health department is lobbying for widening the e-cigarette ban to include other electronic devices that deliver nicotine, including hookah, electronic pipes and others.
Some in the health community urged the health department to wait until the federal Food and Drug Administration weighed in, which it finally did last week. The agency wants to immediately ban the sale of e-cigarettes to minors and require approval for new products and health warning labels. But the FDA stopped well short of a ban — the rules don’t even affect the wide array of flavors seen as an enticement to minors, curb marketing on places like TV or set product standards.
So what do the proposed rules cover? In addition to prohibiting sales to minors and requiring health labels that warn users that nicotine is an addictive chemical, e-cigarette makers also would be required to register their products with the agency and disclose ingredients. They also would not be allowed to claim their products are safer than other tobacco products.
They also couldn’t use words such as “light” or “mild” to describe their products, give out free samples or sell their products in vending machines unless they are in a place open only to adults, such as a bar.
The industry and others have 75 days in which to comment. Once the new rules are finalized, the agency could propose more restrictions on e-cigarettes, but the FDA didn’t provide a timetable for that action.
So absent more definitive FDA action on even a basic e-cigarette ban, the county’s proposal for more regulation of vaporizing devices seems premature, especially if even the current ban isn’t being enforced. Businesses and other agencies are entitled to enforce their own standards. But we’d urge the county and city to wait at least for the FDA to act on the current e-cigarette proposals before proceeding on their own with more regulations.