4/10/2016. Considerations for the Regulation of E-Cigarettes and Other Tobacco Products by Boards of Health

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1 Considerations for the Regulation of E-Cigarettes and Other Tobacco Products by Boards of Health NC Health Directors Legal Conference April 19, 2016 Anna Stein, JD, MPH Legal Specialist, Chronic Disease and Injury Section Division of Public Health NC Department of Health and Human Services 1 NC court opinion excerpts on the nature of police power Since the police power of the State has not been, and by its nature cannot be, placed within fixed definitive limits, it may be extended or restricted to meet changing conditions, economic as well as social. King v. Chapel Hill, NC Supreme Court (2014) [quoting City of Winston- Salem v. S. Ry. Co., NC Supreme Court (1958), discussing police power of municipalities] [T]he nature of the problem (the problem being the protection of public health) is such that it is impossible to lay down precise standards to define what unheard-of or newly discovered public health hazards or diseases might be on the next horizon. City of Roanoke Rapids v. Peedin, NC Court of Appeals (1996) [quoting Cookie s Diner, Inc. v. Columbus Bd. Of Health, Ohio Mun. Ct. (1994) and the argument of the defendant Board of Health] 2 E-cigarettes: An Emerging Threat to Clean Air Use of e-cigarettes creates secondhand aerosol just as traditional cigarettes create secondhand smoke E-cigarette aerosol is not water vapor E-cigarette aerosol contains nicotine, as well as additional toxins, and is not as safe as clean air Clean air free of smoke and e-cigarette aerosol protects the health of bystanders, prevents tobacco use initiation among youth, and encourages cessation The National Institute for Occupational Safety and Health (NIOSH) recommends that all employees be protected from secondhand exposure to tobacco smoke and airborne emissions from e-cigarettes 1

2 Pre-1993: NCGS 130A-39 gave boards of health the authority to adopt rules to protect and promote the public health ; some boards of health passed rules prohibiting smoking in certain places Rules to protect and promote the public health Prohibitions on smoking Areas in which Board of Health is preempted from making rules 1993: The General Assembly passed legislation preempting local regulation of smoking ( the use of a lighted cigarette, lighted cigar, lighted pipe, or any other lighted tobacco product ) [see NCGS (b)] Prohibitions on smoking 2009: The General Assembly passed legislation carving out several exceptions to their preemption of the local regulation of smoking [see NCGS 130A-498] Prohibitions on smoking specifically allowed in NCGS 130A-498, e.g., government grounds, buildings, vehicles, public places Prohibitions on smoking not specifically allowed by NCGS 130A-498, e.g., workplaces that are not open to the public 2

3 Current status: Some boards of health have passed rules regulating smoking under the authority of NCGS 130A-498; they have also regulated smokeless tobacco and e-cigarettes under general authority given in NCGS 130A-39 Prohibitions on the use of smokeless tobacco Prohibitions on the use of e-cigarettes Prohibitions on smoking specifically allowed in NCGS 130A-498, e.g., government grounds, buildings, vehicles, public places Prohibitions on smoking not specifically allowed by NCGS 130A-498, e.g., workplaces that are not open to the public Enforcement of Board of Health Rules: Remedies for Violations Available by Statute Rules regulating smoking See NCGS 130A-496, 130A-498 Against individuals Fines $50 Cannot be a misdemeanor Against business owners Administrative penalties under NCGS 130A-22(h1) $200 per day Cannot be a criminal violation Rules regulating nonlighted tobacco products See NCGS 130A-18, 130A-25 Against individuals and business owners Action for injunctive relief in Superior Court Misdemeanor Not recommended since legislature has indicated its desire that violations of smoking rules not be misdemeanors and these are related rules Ability to Impose Monetary Penalties: City/County Governmental Bodies vs. Boards of Health City councils and boards of county commissioners have a general power to impose monetary penalties for violations of their ordinances See NCGS 153A-123, NCGS 160A-175 Ability of boards of health to impose monetary penalties is limited to those particular circumstances listed in NCGS 130A-22 Violations for smoking are included in this list 9 3

Summary Considerations Need to carefully document reasoning for board of health rule, either through WHEREAS statements within rule or within a resolution that accompanies rule Tobacco Prevention and

(2) the use of e-cigarettes and/or (3) the use of smokeless tobacco products Tailor your penalties section to the activities you are regulating Penalties section can have separate subsections for

4 Summary Considerations Need to carefully document reasoning for board of health rule, either through WHEREAS statements within rule or within a resolution that accompanies rule Tobacco Prevention and Control Branch is a good source for information on the ever-changing and growing body of scientific knowledge on e-cigarettes When writing your rule, consider whether you are regulating (1) smoking, (2) the use of e-cigarettes and/or (3) the use of smokeless tobacco products Tailor your penalties section to the activities you are regulating Penalties section can have separate subsections for smoking and for use of e- cigarettes and/or smokeless tobacco Board of health rules regulating smoking must be approved by an ordinance of the County Commissioners [NCGS 130A-498(a)] This requirement does not apply to rules on use of e-cigarettes and smokeless tobacco; however it is critical to gain support of your County Commissioners for these rules as well Some boards of health and county governments choose to regulate tobacco use through administrative policies (e.g., issued by county managers), rather than through rules or ordinances 10 Tobacco Prevention and Control Branch s Local Government Implementation Toolkit Model ordinances and rules do not currently include e-cigarettes, but TPCB will be posting updated versions this year Please contact TPCB for assistance with crafting smokefree/tobacco-free/e-cigarette-free ordinances and rules 11 NC Regional Tobacco Control Managers 4

5 For Information or Assistance from the Tobacco Prevention and Control Branch Sally Herndon Jim Martin Branch Head Director of Policy & Programs (919) (919) Pam Diggs Anna Stein Director of Local Program Legal Specialist Development and Regulations (919) (919)

INGHAM COUNTY. Effective January 1, 2016 as amended November 10, 2015

INGHAM COUNTY. Effective January 1, 2016 as amended November 10, 2015 INGHAM COUNTY REGULATION TO REQUIRE A LICENSE FOR THE RETAIL SALE OF ELECTROINC SMOKING DEVICES, PROHIBIT SALE OF ELECTROINC SMOKING DEVICESTO MINORS, AND TO RESTRICT LOCATION OF ELECTROINC SMOKING DEVICES