Are there any restrictions on how e-cigarettes may be used or sold?

Updated May 2014

Policy makers, local government staff, and public health advocates often have questions about laws regulating where e-cigarettes can be used and how they can be sold. This FAQ discusses the laws that apply to e-cigarette use and sales in California.

Restrictions on the Use of E-Cigarettes

Currently there is no California or federal law that restricts where people can use e-cigarettes. Unless your local smokefree law defines “smoking” to include e-cigarette use, the use of this product may be legal in places where smoking cigarettes is prohibited. Dozens of localities in California have restricted the use of electronic cigarettes in places where smoking is prohibited. If you are in California and you are uncertain whether your local smokefree air law prohibits the use of e-cigarettes in public places, we can review your local ordinance. If your community would like to amend its local ordinance to ban the use of e-cigarettes in places where smoking is prohibited, our Model Comprehensive Smokefree Places Ordinance has language that could be adapted for that purpose.

At the federal level, the U.S. Department of Transportation has stated that it interprets the federal regulations that prohibit smoking on airplanes to apply to e-cigarettes.

Voluntary policies may also be used to restrict e-cigarette use. Businesses and private property owners can adopt policies to restrict or prohibit the use of e-cigarettes on their premises. Employers may adopt such policies with regard to their employees, and landlords can include lease provisions prohibiting tenants from smoking e-cigarettes.

Restrictions on the Sale of E-cigarettes

California law prohibits the sale of e-cigarettes to minors (California Health and Safety Code § 119405). In most local tobacco retailer licensing laws in California, selling e-cigarettes to a minor is a license violation because tobacco retailer licensing laws automatically incorporate new tobacco control laws – such as the state law prohibiting sales of e-cigarettes to minors - as soon as they go into effect.

Local governments in California also can create a new law to require a business to have a tobacco retailer license to sell e-cigarettes. If you are in California, we are able to review your community’s current licensing ordinance at no charge to see if it covers e-cigarettes, and help draft language to amend the law to include these devices.

On April 25, 2014, the U.S. Food and Drug Administration (FDA) issued its proposed deeming rule which, if adopted as proposed, would add some restrictions on the manner in which e-cigarettes can be sold. Specifically, the deeming rule would extend FDA’s regulatory authority over a variety of tobacco products, including electronic cigarettes, cigars, pipe tobacco, and hookah tobacco. For example, these products would now be subject to the federal prohibition on sales to minors, the federal prohibition on free sampling, federal warning label requirements, and the requirement that tobacco manufacturers register with the FDA and seek the agency’s review of new tobacco products. For more information about legal limits on e-cigarettes, please see our associated FAQs “Are There Any Restrictions on How E-Cigarettes May Be Used or Sold?” and “FDA’s Proposed Tobacco Products Regulation: What Does the Deeming Rule Do?,” as well as our fact sheet “Electronic Cigarettes: How They Are – and Could Be – Regulated.”

If you have any questions about e-cigarettes or if you would like us to review your local ordinance to see if it prohibits the use or sale of e-cigarettes, please contact us. (Please note, we are only funded to provide free technical assistance within the State of California. If you are located outside of California and would like us to review your ordinance, we can do so for a fee.)