Policymakers, local government staff, and public health advocates often have questions about laws regulating where electronic smoking devices (ESDs) can be used and how they can be sold. This FAQ discusses the laws that apply to ESD use and sales in California.
Restrictions on the Use of Electronic Smoking Devices
As of June 9, 2016, California law prohibits the use of ESDs anywhere cigarette smoking is prohibited, including schools, playgrounds, tot lots, public parks, public buildings, farmers markets, and most enclosed workplaces. This prohibition applies to all ESDs—such as electronic cigarettes, cigars, pipes, and hookahs—regardless of whether those products contain nicotine or tobacco. For more information about recent changes to California’s smokefree laws, please see the California Tobacco Control Program’s Fact Sheet on Smoke-free Protections in the Workplace and Electronic Smoking Devices and infographic on California’s Clean Indoor Air Laws.
At the federal level, the US Department of Transportation has stated that it interprets the federal regulations that prohibit smoking on airplanes to apply to ESDs.
Local smokefree laws may also prohibit ESD use in places not covered by state or federal law, such as in multiunit housing and outdoor dining areas. However, unless your local smokefree law defines “smoking” to include ESD use, the use of these products may be legal in places where smoking cigarettes is prohibited. If you are in California and you are not sure whether your local smokefree air law prohibits the use of ESDs in public places, we can review your local ordinance. If your community would like to amend its local ordinance to prohibit the use of ESDs in places where smoking is prohibited, our Model Comprehensive Smokefree Places Ordinance has language that could be adapted for that purpose.
Restrictions on the Sale and Distribution of Electronic Smoking Devices
As of June 9, 2016, California law prohibits selling, giving, or furnishing ESDs to individuals under the age of 21, regardless of whether the ESD contains tobacco or nicotine. This prohibition does not apply to active duty military personnel who are 18 years or older, but the retailer must examine an identification card issued by the United States Armed Forces to verify the purchaser’s age. In most local tobacco retailer licensing laws in California, selling ESDs to an individual under age 21 is a license violation. Most tobacco retailer licensing laws automatically incorporate new tobacco control laws—such as the state law prohibiting sales of ESDs to individuals under 21—as soon as those laws go into effect.
As of January 1, 2017, California law requires businesses that sell ESDs to have a tobacco retailer license. Local governments in California can also create a new law or modify an existing law to require a business to have a tobacco retailer license to sell ESDs. If you are in California, we are able to review your community’s current licensing ordinance at no charge to see if it covers ESDs. We can also help draft language to amend the law to include these devices. For more information on the benefits of local tobacco retailer licensing, please see our associated FAQ, Doesn’t California already require a state license for tobacco retailers? How is a local tobacco retailer license different?
On May 5, 2016, the US Food and Drug Administration (FDA) issued its final deeming rule, which added some restrictions on how ESDs can be sold. Specifically, the deeming rule extended the FDA’s regulatory authority over a variety of tobacco products, including electronic smoking devices, cigars, pipe tobacco, and hookah tobacco. These products are now 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 restrictions on ESDs, please see our associated FAQ, FDA’s Final Tobacco Products Regulation: What Does the Deeming Rule Do?
If you have any questions about ESDs, or if you would like us to review your local ordinance to see if it prohibits the use or sale of ESDs, please contact us. (Please note, we are funded to provide free technical assistance within the State of California, and to state health departments on issues relating to tobacco retailer licensing or point of sale policies. If you are not eligible for free technical assistance but would like us to review your ordinance, we can do so for a fee.)