Updated May 2014

(Originally published October 2013)

ChangeLab Solutions is a nonprofit organization that provides legal information on matters relating to public health. The legal information provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

© 2014 ChangeLab Solutions

Introduction

ChangeLab Solutions developed this Model Ordinance to help local governments regulate the use and sale of Electronic Smoking Devices (also known as electronic cigarettes, e-cigarettes, or electronic nicotine delivery systems) and their component parts.By restricting the use of electronic smoking devices in places where smoking is prohibited, cities and counties can protect their residents from involuntary exposure to the secondhand byproducts of electronic smoking devices, such as vapor; reduce the likelihood that children will associate the use of electronic smoking devices with healthful behavior;and reduce the likelihood that smoking in public places and places of employment will become “re-normalized.”By regulating how electronic smoking devices and their component parts are sold, cities and counties can help promote compliance with local laws regulating business practices, and reduce youth access to electronic smoking devices.

Note: Many jurisdictionsin California already have local laws restricting the use of tobacco products in public places and places of employment.Similarly, many jurisdictions in California already have local laws regulating the sale of tobacco products, such as local tobacco retailer licensing laws or local prohibitions on tobacco sampling. Communities that already have these local laws in place should consider regulating electronic smoking devicesby amending their existing tobacco control laws to treat electronic smoking devices in the same way as traditional tobacco products. Please see ChangeLab Solutions’ flowchart, “How to Regulate E-Cigarettes and Other Electronic Smoking Devices in Your Community,” to determine whether amending existing local laws is the best approach for your community.ChangeLab Solutions can assist you with this customization. Jurisdictions that do not currently have local laws regulating tobacco products but stillwish to regulate electronic smoking devices can use this Model Ordinance.

The Model Ordinance offers a variety of options. In some instances, blanks (e.g., [____] ) prompt you to customize the language to fit your community’s needs. In other cases, the ordinance offers you a choice of options (e.g., [ choice one / choice two ] ). Some options are followed by a comment describing the legal provisions in more detail. Some degree of customization is always necessary in order to make sure the ordinance is consistent with a community’s existing laws. Your city attorney or county counsel will likely be the best person to check this for you.

If you have questions about how to adapt this ordinance for your community, please contact ChangeLab Solutions through our website at for assistance.

AN ORDINANCE OF THE [CITY / COUNTY ] OF[ ____]

AMENDING THE [____] MUNICIPAL CODE TO REGULATE

ELECTRONIC SMOKING DEVICES

The [City Council of the City / Board of Supervisors of the County] of [____] does ordain as follows:

comment: This is introductory boilerplate language that should be adapted to the conventional form used in the jurisdiction.

SECTION I. FINDINGS.

The [City Council of the City / Board of Supervisors of the County] of [____] hereby finds and declares as follows:

WHEREAS, electronic smoking devices, commonly known as “electronic cigarettes,” “e-cigarettes,” “e-cigars,” “e-cigarillos,” “e-pipes,” “e-hookahs,” “electronic nicotine delivery systems,” etc., are battery operated devices designed to deliver nicotine, flavor, and/or other substances through a vapor inhaled by the user[1]; and

WHEREAS, use of electronic smoking devices has increased significantly in recent years, as evidenced by the fact that:

  • Between 2011 and 2012 the percentage ofall youth in grades 6 to 12 who had tried electronic smoking devices doubled;[2]
  • 6.8% of all youth between 6th and 12th grade report trying electronic smoking devices;[3]
  • 10% of high school students have tried electronic smoking devices;[4]
  • 9.3% of youth who have used electronic smoking devices have never smoked conventional cigarettes;[5]
  • Between 2010 and 2011, rates of both awareness and use of unregulated electronic smoking devices by adults also increased significantly;[6] and

WHEREAS, existing studies on electronic smoking devices’ vapor emissions and cartridge contents have found a number of dangerous substances including:

  • Chemicals known to the State of California to cause cancer[7] such as formaldehyde, acetaldehyde, lead, nickel, and chromium;[8],[9]
  • PM2.5,acrolein,tin, toluene, and aluminum,[10], [11],[12],[13] which are associated with a range of negative health effects such as skin, eye, and respiratory irritation,[14], [15], [16],[17] neurological effects,[18] damage to reproductive systems,[19]and even premature death from heart attacks and stroke;[20]
  • Inconsistent labeling of nicotine levels in electronic smoking device products;[21] and
  • In one instance, diethylene glycol, an ingredient used in antifreeze and toxic to humans;[22] and

WHEREAS, more than one study have concluded that exposure to vapor from electronic smoking devices may cause passive or secondhand vaping;[23],[24],[25] and

WHEREAS, some cartridges used by electronic smoking devices can be re-filled with liquid nicotine solution, creating the potential for exposure to dangerous concentrations of nicotine,[26] and as a result:

  • Poisonings from electronic smoking devices have increased dramatically in the last three and half years from “one [a month] in September 2010 to 215 a month in February 2014;”[27]
  • Analysis of reports of poisonings from electronic smoking devices finds that calls reporting exposure to electronic smoking devices are much more likely to involve adverse health effects when compared to calls reporting exposure to conventional cigarettes;[28]and

WHEREAS,clinical studies about the safety and efficacy of these products have not been submitted to the FDA[29]for the over 400 brands of electronic smoking devices that are on the market[30]and for this reason, consumers currently have no way of knowing:[31]

  • Whether electronic smoking devices are safe;
  • What types or concentrations of potentially harmful chemicals the products contain; and
  • What dose of nicotine the products deliver;and

WHEREAS, the World Health Organization has strongly advised consumers against the use of electronic smoking devices until they are “deemed safe and effective and of acceptable quality by a competent national regulatory body”;[32] and

WHEREAS, the World Medical Association has determined that electronic smoking devices “are not comparable to scientifically-proven methods of smoking cessation” and that “neither their value as therapeutic aids for smoking cessation nor their safety as cigarette replacements is established”;[33] and

WHEREAS, the State of California’s Tobacco Education and Research Oversight Committee (TEROC) “opposes the use of e-cigarettes in all areas where other tobacco products are banned.”[34]

WHEREAS, a study published in the Journal of Environmental and Public Health suggests that electronic smoking devices “may have the capacity to ‘re-normalize’ tobacco use in a demographic that has had significant denormalization of tobacco use previously”;[35] and

WHEREAS, electronic smoking devices often mimic conventional tobacco products in shape, size, and color,[36] with the user exhaling a smoke-like vapor similar in appearance to the exhaled smoke from cigarettes and other conventional tobacco products;[37] and

WHEREAS, the use of electronic smoking devices in smokefree locations threatens to undermine compliance with smoking regulations and reverse the progress that has been made in establishing a social norm that smoking is not permitted in public places and places of employment;[38]

WHEREAS, over 59 jurisdictions within California require retailers to obtain a license to sell electronic smoking devices[39] and at least 44 local jurisdictions in California prohibit the use of electronic smoking devices in specific locations.[40]

NOW THEREFORE, it is the intent of the [City Council / County Board of Supervisors], in enacting this ordinance, to provide for the public health, safety, and welfare by discouraging the use ofelectronic smoking devices around non-users, especially children; by protecting the public from exposure to secondhand byproducts of electronic smoking devices where they live, work, and play; by facilitating uniform and consistent enforcement of smoke-free air laws; by reducing the potential for re-normalizing smoking in public places and places of employment; by reducing the potential for children to associate the use of electronic smoking devices with a normative or healthy lifestyle; and by prohibiting the sale or distribution of electronic smoking devices to minors.

SECTION II. [Article / Chapter] of the [____] Municipal Code is hereby amended to read as follows:

Sec. [____(*1)]. DEFINITIONS. The following words and phrases, whenever used in this [article / chapter] shall have the meanings defined in this section unless the context clearly requires otherwise:

(a)“Business” means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for purposes that include profit-making.

(b) “Electronic Smoking Device” means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances.“Electronic Smoking Device” includesany such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. “Electronic Smoking Device” does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease.

comment:This definition is broad enough to cover all Electronic Smoking Devices regardless of whether they are being used to deliver nicotine or other substances. Regulating the use of all varieties of Electronic Smoking Devices, regardless of their nicotine content, protects bystanders from exposure to the hazardous substances found in Electronic Smoking Device vapor, reduces the risk that children may view the use of Electronic Smoking Devices in smokefree areas as normative, and facilitates uniform enforcement.Should a jurisdiction wish to limit its regulation of Electronic Smoking Devicesales to only those products that contain nicotine, there is optional language in section [____(*3)(e)] below.

(c) “Electronic Smoking Device Paraphernalia” means cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, Electronic Smoking Device batteries, Electronic Smoking Device chargers, and any other item specifically designed for the preparation, charging, or use of Electronic Smoking Devices.

comment: This definition is meant to cover only those products that are exclusively designed for use with Electronic Smoking Devices. Products that are designed for general use with other types of devices, such as standard format USB cables, standardized batteries, etc., would not be covered because such devices are not specifically designed for use with Electronic Smoking Devices.

(d)“Employee” means any Person who is employed or retained as an independent contractor by any Employer or Nonprofit Entity in consideration for direct or indirect monetary wages or profit, or any Person who volunteers his or her services for an Employer or Nonprofit Entity.

comment: This definition makes clear that volunteers and independent contractors are Employees for purposes of this section.

(e) “Employer” means any Business or Nonprofit Entity that retains the service of one or more Employees.

(f)“Nonprofit Entity” means any entity that meets the requirements of California Corporations Code section 5003 as well as any corporation, unincorporated association or other entity created for charitable, religious, philanthropic, educational, political, social or similar purposes, the net proceeds of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A government agency is not a Nonprofit Entity within the meaning of this [article / chapter].

comment: This definition is broader than the IRS designation of a nonprofit organization in order to cover more informal groups and associations.

(g) “Nominal Cost” means the cost of any item imposed for the transfer from one person to another for less than the total of: (1)[twenty-five percent (25%)] of the fair market value of the item exclusive of taxes and government fees; plus (2) all taxes and government fees previously paid and all taxes and government fees still due on the item at the time of transfer.

comment: “Nominal cost” is used in the definition of “nonsale distribution” below and this definition provides a bright-line rule as to what price is so low for Electronic Smoking Devices as to be prohibited by this ordinance.

(h) “Nonsale Distribution” means to give, furnish, or cause or allow to be given or furnished within the jurisdictional limits of the [city / county], an Electronic Smoking Device or Electronic Smoking Device Paraphernalia at no cost or at Nominal Cost to a Person who is not a Retailer.

(i)“Person” means any natural person, Business, cooperative association, Employer, Nonprofit Entity, personal representative, receiver, trustee, assignee, or any other legal entity including a government agency.

comment: The Municipal Code may already contain a definition of “person;” review any existing definition of “person” in the Municipal Code to determine whether to include the abovedefinition in your ordinance.

Note: If Section [ (*5)(g) ] — private citizen enforcement — is included in the ordinance, keep this specific definition of “Person.”

This definition incorporates numerous entities including Business, Employer, Nonprofit Entity, landlord, and individual. In addition, it includes the City or County.

(j)[ “Public Place” means any place within the [city / county], public or private, that is open to the general public regardless of any fee or age requirement, including, for example, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, and buses [ and means any place used by a membership association or club at which non-member guests are present or permitted, including, for example and without limitation, fraternity and sorority houses] ].

comment:This entire definition is optional and, if added, can be used to limit the ban on Electronic Smoking Device sampling to sampling that occurs in public places only. Without this provision, all nonsale distributions of Electronic Smoking Devices with a business purpose, even if on private property not open to the public, will be restricted (e.g., private parties such as raves). Note that nonsale distributions that are not for a business purpose, such as friends giving friends Electronic Smoking Devices, are not prohibited by this ordinance.

If a “public place” limitation on Electronic Smoking Device sampling is desired, then a further choice must be made whether or not to regulate membership organizations. To regulate membership organizations, include the phrase that is underlined and bracketed above. However, if membership organizations are to be excluded from coverage, omit that language. Note that membership organizations are covered if the “public place” limitation is not imposed (i.e., no part of this definition is included).

(k)“Retailer” means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, Electronic Smoking Devices or Electronic Smoking Device Paraphernalia. “Retailing” means the doing of any of these things. This definition is without regard to the quantity of the Electronic Smoking Devices or Electronic Smoking Device Paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(l) “Self-Service Display” means the open display or storage of Electronic Smoking Devices or Electronic Smoking Device Paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of aRetailer or Employee of aRetailer and a direct person-to-person transfer between aRetailer or Employee of aRetailer and any other Person. A vending machine is a form of Self-Service Display.

(m)“Smoking” means engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, or a lighted cigarette of any kind; or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette of any kind.

comment: This is a conventional definition of smoking which does notexplicitly include the vapors produced by Electronic Smoking Devices. This definition is appropriate for jurisdictions that do not have a local smokefree air law, but who nevertheless want to adopt a local law in order to restrict the use of electronic cigarettes in places covered by the California Smoke Free Workplace Law. This model ordinance achieves this goal by prohibiting the use of Electronic Smoking Devices in all places where smoking, as that term is conventionally defined, is prohibited.

Jurisdictions that wish to adopt a local smokefree air law that prohibits the use of combustible tobacco products andElectronic Smoking Devices in locations that are not covered by the California Smoke Free Workplace Law, or that wish to amend such a law, should use the definitions of “Smoking” and “Smoke” contained in ChangeLab Solutions’ Comprehensive Smokefree Places Ordinance.

Sec. [____(*2)]. PROHIBITION OF ELECTRONIC SMOKING DEVICE USE IN SMOKE-FREE PLACES

(a)It shall be a violation of this [article / chapter] to use an Electronic Smoking Device in any place within the [City / County of____] where Smoking of tobacco products is prohibited by law.

comment: This provision makes it unlawful for a person to use an Electronic Smoking Device in all places where smoking is prohibited by law, including all places of employment subject to the California’s Smoke Free Workplace Law (Labor Code Section 6404.5).

(b)No Person, Employer, or Nonprofit Entity shall knowingly permit the use of Electronic Smoking Devices in an area under the legal or de facto control of that Person, Employer or Nonprofit Entity and in which Smoking is prohibited by law.

comment: This provision makes anyone who is in control of an area responsible for Electronic Smoking Device use in violation of this and other no-smoking laws. Thus, enforcement actions can be taken against a Business, landlord, Employer, or Nonprofit Entity, in addition to an individual user, who knowingly breaks the law.

Sec. [____(*3)]. RETAILING REQUIREMENTS AND PROHIBITIONS

(a)Sale to minors prohibited. It shall be a violation of this [article / chapter] to sell, give or furnish, or cause to be sold, given or furnished, an Electronic Smoking Deviceor Electronic Smoking Device Paraphernalia to a natural Person under 18 years of age in any place within the [City / County of____].