MRM EXCLUSIVE: Vaping vs. Smoking: What Does the Law Say?

It’s Friday night and your bar and grill is hopping with eating, drinking, socializing guests. Suddenly, one of your servers rushes up to you. “Customers are complaining of a guy vaping over there,” she says. “Look at all that smoke.” Sure enough, a patron at the bar is happily puffing on a battery-powered e-cigarette, sending an enormous cloud of water vapor into the air. Never mind that it is a no-smoking area.

So what is the restaurant manager to do? When it comes to no-smoking laws and regulations, are e-cigarettes any different than conventional Marlboros, Camels, and Kools?

Much to the annoyance of vaporizer users, in a growing number of states and municipalities the answer is a straightforward no. In March 2016, the Tobacco Control Legal Consortium and the Public Health and Tobacco Policy Center conducted a 50-state survey of the U.S. landscape of e-cigarette legislation. Researchers found that several states—including Colorado, Hawaii, Minnesota, North Carolina, South Dakota, Utah, West Virginia and Wyoming, as well as the District of Columbia—had all passed at least one provision formally declaring e-cigarettes to be “tobacco” or “tobacco-derived” products. States such as Connecticut, Delaware, Maine and New Jersey have passed laws specifically including e-cigarettes in existing no-smoking restrictions, including those covering bars and restaurants.

Many local laws throughout the United States also place specific restrictions on e-cigarette use.

Moreover, many local laws throughout the United States also place specific restrictions on e-cigarette use. As of January 2016, 475 counties and cities have extended the application of their smoking ordinances to include e-cigarettes.  After much delay, the federal government, has entered the fray: This past spring, the FDA officially classified e-cigarettes as tobacco products and moved to regulate their ingredients. A day later, California banned the use of e-cigs in places where smoking is already prohibited and, as other states before it had already done, defined e-cigarettes as tobacco products.  But this growing trend to restrict the use of these vaping devices is not universal.  Many cities, including my own Houston, Texas have thus far refrained from expanding their smoking ordinances.

Is this news common knowledge throughout the entirety of American society? Certainly not. And this is why it is important to politely confront patrons who decide to vape at the bar or at their table. Some of these patrons might sincerely believe they are doing nothing wrong or, at the very least, that legal loopholes prevent anyone from restricting their e-cig use. “I’m not smoking,” the patron says. “This is perfectly safe. It’s within my rights to use it here.” In response, you’ll want to be able to calmly cite prevailing state and local regulations with confidence and accuracy. Work with your legal counsel to make sure you understand the letter of the law on e-cigs in the specific markets in which your restaurants do business. If you have written policies on tobacco use for your employees, be sure to ask your legal counsel to update your handbook to formally include e-cigarettes as part of the picture.

To be sure, this issue is not fully resolved. The e-cigarette industry and even some medical professionals (especially in Europe) contend that vaping devices are safer than tobacco products and that they can help people quit smoking. According to some advocates, the poisons in the tobacco plant are the real danger and the nicotine in e-cigs is relatively harmless at low doses. Nonetheless, arguments by the likes of the American Nonsmokers Rights Foundation (ANRF) do seem to be ruling the day. “The use of e-cigarettes in workplaces and public places is a significant public health concern,” states ANRF on its website, “not only because of their unregulated constituents and the potential health impact of the vapor on users and bystanders, but also because e-cigarette use causes public confusion as to where smoking is allowed, resulting in compliance problems with smoke free laws.”

Clearly, our society is leaning in ANRF’s direction. Outside of designated smoking areas, patrons in your establishment are unlikely to be on solid legal ground in claiming the “right” to vape. Do your research. With the law on your side, you should feel no compunction about politely, but firmly, asking the patron to go blow smoke (or water vapor, as the case may be) someplace else.