«Regulating Tobacco Use Outdoors / 1 Tips & Tools Regulating Tobacco Use Outdoors The Tobacco Control Legal Consortium has created the Tips & Tools ...»
Regulating Tobacco Use Outdoors / 1
Tips & Tools
Regulating Tobacco Use Outdoors
The Tobacco Control Legal Consortium has created the Tips & Tools series of legal technical
assistance guides to serve as a starting point for organizations interested in implementing certain
tobacco control measures. We encourage you to consult with local legal counsel before
attempting to implement these measures.1 For more details about these policy considerations,
please contact the Consortium.
Smoke-free Outdoor Air Over the last decade, as evidence of the dangers of secondhand smoke has mounted, many communities have passed tobacco-free laws or regulations that cover outdoor areas such as parks, recreational facilities, beaches, outdoor workplaces, restaurant and bar patios, transit waiting areas, and public events such as county fairs and farmers’ markets. As just one example, a recent movement to remove all tobacco products from ball parks has resulted in a growing number of major league baseball stadiums, including Boston, Chicago, Los Angeles, New York City, and San Francisco, going tobacco-free.2 At the same time, many hospital and school administrators and other employers are continuing to adopt tobacco-free campus policies, which extend to outside grounds such as parking lots, and any property owned, leased, rented or controlled by the employer.3 Also, as sales of electronic smoking devices have proliferated, several states and localities have expanded or amended their outdoor clean air measures to prohibit the use of any tobacco product, including e-cigarettes.4 This brief guide provides pointers for communities and policy makers to consider when drafting and implementing tobacco-free outdoor policies.
Policy Benefits Public Health Impact. Exposure to second-hand smoke is linked to a wide range of serious and life threatening health problems including heart disease, cancer, asthma and other respiratory problems.5 Children exposed to second-hand smoke face increased risk of asthma, sudden infant death syndrome (SIDS), acute respiratory infections and ear problems. While most scientific evidence relates to indoor exposure, several recent studies have found that secondhand smoke exposure levels can be significant outdoors, particularly when smokers are in close proximity to others.6 Regulating Tobacco Use Outdoors / 2 In addition to preventing secondhand smoke exposure, outdoor tobacco-free laws help smokers who are trying to quit, by eliminating the sight and smell of tobacco smoke. As with all tobaccofree policies, these measures send a message to children and youth that tobacco use is not an acceptable behavior or a norm in the community. Also, many public health professionals are concerned that permitting e-cigarettes to be used in smoke-free areas may cause confusion in enforcement and may serve to renormalize “smoking-like behavior,” resulting in higher youth initiation rates and lower adult cessation rates.7 As a result, a growing number of states and localities are amending their smoke-free laws to include electronic smoking devices.
Environmental Impact. Discarded cigarette butts are a non-biodegradable form of litter that can take decades to break down. Several trillion discarded cigarette butts litter sidewalks, beaches and other outdoor areas each year and are the single most collected item in international beach cleanups.8 Cigarette and other tobacco product litter is unattractive, expensive to clean up, and an environmental blight, harmful to waterways and wildlife. This waste can also affect the health of humans when, for example, children pick up and consume used cigarette butts and when the chemicals produced from wet cigarette butts enter storm drains, groundwater, recreational bodies of water, and other environments.9 Discarded cigarettes are also a significant cause of outdoor fires, accounting for hundreds of millions of dollars in annual costs in environmental damage, personal property losses, firefighting expenses and restorative efforts.10 In addition, recent awareness of the individual and environmental health risks associated with ecigarettes and their components11 has highlighted the need for safe handling and disposal of these products.12 E-cigarette cartridges typically contain hazardous substances such as nicotine, as well as other potentially harmful constituents, such as formaldehyde, acetaldehyde, benzene, and toluene.13 Outdoor policies that prohibit the use of all tobacco products, including e-cigarettes, can help reduce the overall amount of tobacco product waste, as well as maintenance and cleanup costs.
Policy Elements Well-crafted tobacco-free outdoor policies are explicit about what they cover, and how
communities will implement and enforce them. Here are a few elements found in such policies:
Timely findings and clear policy purpose. Findings are brief statements of fact or statistics that outline the issue being addressed, support the need for the policy, and help clarify the policy goal. Often tobacco-free outdoor policies include current data documenting the health risks associated with exposure to secondhand tobacco smoke, as well as studies measuring exposure to smoke in outdoor areas. Statistics illustrating the impact of tobacco product waste on a local community would also support the need for regulations on outdoor smoking and tobacco use.
Clear definitions and concise language. Avoid confusion about what constitutes an outdoor or indoor (enclosed) space by clearly defining the space you want to regulate. Some policies, for example, prohibit smoking outdoors within a reasonable distance (typically, 15 to 20 feet) from an entrance, an exit, or a vent into any enclosed smoke-free area or any unenclosed area where smoking is prohibited. Other policies define outdoor space by Regulating Tobacco Use Outdoors / 3 indicating that the policy reaches all property within certain boundaries, or all property in any way controlled by the organization adopting the policy. Depending on the reach of a particular policy, it might also be helpful to define indoor spaces. Be both explicit and practical, and be sure to include any exemptions or exceptions to this policy. Also, if the policy includes the use of e-cigarettes and similar products, be careful that these products are clearly defined, so no ambiguity exists about what the law covers.14 Robust enforcement options. Enforcing outdoor tobacco-free policies can be challenging unless clear procedures are established, along with a reasonable penalty and appeal process.
Effective enforcement of these policies often includes coordination among different enforcement agencies and consistent procedures throughout a community. The penalties section of the policy should clearly identify how persons can be found in violation of the policy, and the penalties or fines for first, second and additional violations.
Well-planned implementation process. Most outdoor policies are self-enforcing, which means they depend upon the cooperation of the public – generally those who frequent the areas. Since most people will refrain from smoking if they know a tobacco-free policy is in place, the best way to enhance enforcement is to educate the public and local businesses about the policy early and often in the implementation process.
Greater community compliance will be achieved if the policy is easy to understand, the boundaries and areas covered under the policy are clearly identified, and active steps are taken to communicate its impact to all affected groups.
Also, be sure to consider the practical effects an outdoor policy might have on neighboring properties and public places. For example, be prepared to address problems that might arise if smokers congregate or litter on nearby private properties or heavily-traveled public sidewalks or streets.
Potential Legal Challenges
Although outdoor tobacco-free policies have proliferated in recent years, only a few of them have been legally challenged. In most cases, courts have upheld local laws prohibiting smoking in outdoor areas on the grounds that such laws (1) are within the authority of local governments to protect public health, safety and welfare; and (2) are not preempted by statewide smoke-free laws, which typically regulate smoking in enclosed or indoor areas only and address outdoor smoking minimally or not at all.15 Regulating Tobacco Use Outdoors / 4 In 2013, for example, the New York Supreme Court struck down smoke-free restrictions on outdoor smoking at New York state parks, including beaches and all nine state parks within New York City.16 Although more than 200 municipalities in New York State have passed regulations restricting tobacco use in parks, playgrounds, beaches, pools, athletic areas, pavilions and other outdoor recreational areas,17 the court ruled that the state agency that created the state parks law exceeded the authority granted to it by state law.18 In 2014, however, a New York appeals court, ruling that the state agency did have the authority to enact the law, reinstated the smoke-free regulation.19 In a few cases, however, these challenges have been successful. In 2012, a Florida district court judge20 struck down a local ordinance prohibiting the use of tobacco products in public parks on the ground that the ordinance was preempted by the Florida Clean Indoor Air Act.21 The court’s decision appeared to be heavily influenced by previous interpretations of Florida’s statewide smoke-free law as preempting outdoor smoking regulation.22 Also in 2012, the Oklahoma Attorney General’s Office issued an opinion concluding that the state’s smoke-free law limits municipal authority to enact laws prohibiting smoking in outdoor areas of municipally-owned or -operated properties, including public parks.23 Oklahoma’s smoke-free law contains a preemption clause indicating that the state legislature “intends to preempt any other regulation promulgated to control smoking,” and cities and towns may pass and enforce laws regulating smoking only if their provisions are “the same as” and “not more stringent” than those of the Act.24 The Oklahoma Attorney General interpreted this language to mean that any municipal ordinance regulating smoking that contains additional requirements, conditions, or prohibitions is in direct conflict with, and preempted by, state law. Attorney generals’ opinions, which are written interpretations of a state’s law from its chief legal officer, are typically given weight by the courts in that particular state, and although they may be persuasive, they are not legally binding.
Select Legislation and Policies
Below are examples of smoke-free and tobacco-free policies in different outdoor areas around the U.S., as well as model policies. If you consider adapting any language from these policies, take care to ensure the provision in question is practical and legal in your jurisdiction. Please note that the Tobacco Control Legal Consortium does not endorse or recommend any of the following policies. These examples are included simply to illustrate how various jurisdictions have approached similar issues.
Other Helpful Resources The Consortium’s parent organization, the Public Health Law Center, has a webpage containing information on smoke-free and tobacco-free regulation in outdoor areas. The Consortium also has guides on adopting tobacco-free campus policies, regulating e-cigarettes and similar devices, minimizing the public health and environmental effects of cigarette waste, and the safe handling and disposal of e-cigarette waste. Americans for Nonsmokers’ Rights compiles lists and maps of Regulating Tobacco Use Outdoors / 6 smoke-free and tobacco-free outdoor areas throughout the U.S., including beaches, parks, zoos, sports stadiums, arenas and outdoor dining areas. Tobacco-Free Youth Recreation’s website includes many policy implementation resources that cover tobacco-free parks and recreation areas, fairgrounds, rodeos and outdoor events. For additional research and resources on eradicating cigarette waste, check out the following websites: Cigarette Butt Pollution Project at http://www.cigwaste.org; CigaretteLitter.Org at http://www.cigarettelitter.org; and Litter Butt at http://www.litterbutt.com.
Contact Us Please feel free to contact the Tobacco Control Legal Consortium at (651) 290-7506 with any questions about the information included in this guide or to discuss local concerns you may have about implementing such a policy.
Last updated: June 2016 Notes The information contained in this document is not intended to constitute or replace legal advice. We encourage anyone considering the implementation of any tobacco–related law or policy to seek out local legal counsel to obtain legal advice on these issues.
See, e.g., Knock Tobacco Out of the Park website (last accessed June 2016), http://tobaccofreebaseball.org.
For more information about regulating smoking and tobacco use on school campuses, see the Consortium’s website at http://publichealthlawcenter.org/topics/tobacco-control/smoke-free-tobacco-freeplaces/schools.
See, e.g., Americans for Nonsmokers’ Rights website (listing states and municipalities regulating use of e-cigarettes), http://no-smoke.org/pdf/ecigslaws.pdf and the Public Health Law Center’s 50-state survey of e-cigarette regulations (including links to state laws restricting e-cigarette use), http://www.publichealthlawcenter.org/resources/us-e-cigarette-regulations-50-state-review.
U.S DEP’T OF HEALTH & HUMAN SERVICES, CENTERS FOR DISEASE CONTROL AND PREVENTION, TheHealth Consequences of Involuntary Exposure to Tobacco Smoke: Report of the Surgeon General (2006), http://www.surgeongeneral.gov/library/secondhandsmoke/report/index.html.
See, e.g., Xisca Suredo et al., Secondhand Tobacco Smoke Exposure in Open and Semi-Open Settings:
A Systematic Review, 10 ENVIRONMENTAL HEALTH PERSPECTIVE 1289 (2013),
http://ehp.niehs.nih.gov/1205806; James Repace, Benefits of Smoke-free Regulations in Outdoor Settings:
Beaches, Golf Courses, Parks, Patios and in Motor Vehicles, 34 WM MITCHELL LAW REVIEW 4 (2008).
See Tobacco Control Legal Consortium, Regulating Electronic Cigarettes and Similar Devices – Tips & Tools (2015), http://www.publichealthlawcenter.org/sites/default/files/resources/tclc-guide-regecigarettes-2015.pdf.
CigaretteLitter.org, Cigarette Litter, http://www.cigarettelitter.org.