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Ahead of federal regs, Texas cities target e-cigarettes

Vaporizer cigarettes
Vaporizer cigarettes
Lou Ann Anderson

With 2014 in full swing, Texas’ municipal government creepers appear to have identified the movement’s newest liberty-lifting target: electronic cigarettes. Advocates extol these products as a revolutionary invention saving millions of lives with even more potential to provide benefit in a variety of still evolving applications. Meanwhile, personal freedom and limited government proponents should view with caution efforts of Texas cities seeking new behavior-control authority by regulating or limiting the use of e-cigarettes, a legal product.

E-cigarettes, also known as vaporizer cigarettes, are battery-operated devices that provide a sensation similar to smoking by emitting doses of vaporized nicotine that are inhaled. Although they can also emit non-nicotine vaporized solutions, e-cigarettes are largely considered an alternative for tobacco smokers seeking to avoid inhaling smoke. While the liquid or “juice” heated to produce the water vapor doesn’t contain tobacco, it may include nicotine and can come in flavors like vanilla or menthol as well as other fruit flavors.

Though only short-term often inconclusive research is currently available, federal regulation of e-cigarette sales and advertising is undoubtedly ahead. The $1.5 billion U.S. e-cigarette industry has seen sales triple in 2013. Meanwhile, Forbes reports that Euromonitor forecasts the retail sales value of e-cigarettes worldwide for 2013 at $2.5 billion while Wells Fargo is estimating that figure to top $10 billion by 2017. Bloomberg Industries projects sales to exceed those of traditional cigarettes by 2047.

Any evolving industry has its detractors, but if given a chance, the free market will offer this product category opportunity to mature with consumers prompting a sink-or-swim outcome based on its merits and performance. Robert West, a professor of health psychology and director of tobacco studies at the University College London, has gone so far as to proclaim e-cigarettes with having the potential to save millions of lives. As West is not alone in seeing benefits and new applications, reactionary responses to e-cigarettes seem premature.

Ahead of a federal stance on this issue, however, local cities aren’t missing an opportunity to insert their own behavior-modifying mandates on the subject of e-cigarettes or “vaping” as it’s also called.

In October, Mansfield became the first North Texas city to take action against e-cigarettes by placing a six-month hold on e-cigarette shop permits allowing the city’s staff time to “look at the issue and consider where e-cigarettes fit into the city’s smoking ordinance.”

The Dallas Morning News further reports Richardson is requiring a special permit to open an e-cigarette establishment while officials in the city of Murphy have prohibited minors from buying or possessing e-cigarette products.

Rockwall is similarly considering banning e-cigarette sales to minors and requiring a specific use permit for non-traditional smoking-related businesses although the enforceability and propriety of such action is at issue.

Per the Morning News:

“How do we regulate things like caffeine, then?” City Council member Jim Pruitt said at a recent meeting. “Are we going to get in where we don’t want kids in coffee shops?”

Among other cities, Austin currently has different rules for regular cigarettes and e-cigarettes while Houston has no policy specifically addressing them.

From Houston Press:

In Houston, there are no rules regarding this relatively new phenomenon.

According to our local regulations:

Smoking is prohibited in enclosed public places. Public places are places in which the public is invited or permitted. Restaurants, bars, museums, libraries, public and private schools, convention centers, theaters, bingo halls, bowling alleys, buses, taxicabs, retail establishments, shopping malls, lobbies, restrooms, and hallways of apartment or condominium buildings are a few examples of enclosed public places where smoking is prohibited except under very limited circumstances.

Pretty straightforward until you get to all the rules about how far away you have to be from emergency exits and air vents if you’re outside, but that doesn’t seem to be a contentious topic. But then there’s the question of what constitutes “smoking.”

San Antonio’s smoking ordinance also doesn’t apply to e-cigarettes.

The city of Temple tightened its smoking ordinance in 2013. City Attorney Jonathan Graham recently told the Temple Daily Telegram that “exactly where e-cigarettes stand in relation to the ordinance has not been established, but for now the smokeless cigarettes will be allowed in non-smoking areas” due to the ordinance addressing smoking from “a burning perspective.” He further noted that, if requested to do so by the city council, he will look into the issue. With issues like an illegitimately-seated city councilwoman and ongoing police abuse allegations, the council is likely to welcome an e-cigarette distraction.

School districts are also getting into the act. A new Austin Independent School District policy banned e-cigarettes from schools and school-related activities. The Dallas ISD currently, however, has no policy on the issue, but The Morning News reports several Dallas area school districts – namely, Richardson, Plano, Allen, McKinney, Frisco, Rockwall and Mesquite — are moving in the ban direction.

Though no law exists, wide agreement appears to exist with regard to restricting use by minors of e-cigarettes. In fact, many vapor stores reportedly police themselves with policies prohibiting e-cigarette sales to children 17 and under. As with any new industry, early entrants comprise a wide range of entities with assorted motivations. Free markets – not government – will ultimately help separate the best of the industry from the worst. And while some undoubtedly are looking strictly at a pure profit motive, others are demonstrating interest in responsibly developing the vaping market. Voluntarily invoking age restrictions is one such example.

As with smoking, future e-cigarette restrictions by local governments are poised to set new precedent in diminishing property owners’, including business owners’, basic property rights. The threat of such restrictions also smack of new infringements upon an individual’s freedom to use a not unlawful product. The implications should not be taken lightly.

In one of his last acts as New York City mayor, Michael Bloomberg amended the city’s Smoke-Free Air Act which bans smoking in public places such as restaurants, bars, parks, beaches and places of employment. E-cigarettes are now also outlawed in all areas where smoking is prohibited.

In response, highlighted these tweets expressing sentiments that just might grow as the public becomes more educated on this issue and hopefully questions just in what is government most interested – feigning concern for public health or exerting new authority over its citizens?

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