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Smoking in California

Smoking Exemptions

by Kevin Woo

Many California businesses may still legally allow smoking indoors.

For more than 15 years, California has prohibited smoking in restaurants and most bars and other indoor places. (See Cal. Labor Code § 6404.5.) With many outdoor locations now off limits too, the prohibitions are so thorough that it can feel almost illicit to glimpse people puffing away in the occasional shop or bar. But those venues are likely perfectly law-abiding, just benefiting from a confusing collection of exemptions. Cigar bars, tobacco shops, hotel lobbies, workplaces with fewer than five employees, and a small number of other businesses may allow smoking – as long as they don’t serve food.

The confusion is likely to grow as many cities and the federal government restrict the use of electronic cigarettes (which emit vapor instead of smoke), while some businesses and municipalities allow “vaping” in places where smoking is banned.

A 2007 effort to close California’s smoking loopholes and a 2010 attempt to ban smoking at state parks and beaches both failed when then-Governor Arnold Schwarzenegger, a cigar smoker, vetoed them. Attempts at change haven’t fared any better under Governor Jerry Brown, whose reelection campaign has so far received more than $50,000 from Philip Morris USA.

Electronic cigarettes

by Kelly Rayburn

Switching to electronic cigarettes are entering a booming, largely unregulated market that could change dramatically in 2014.

The Food and Drug Administration is mulling rules to incorporate the devices under 2009’s Family Smoking Prevention and Tobacco Control Act (Pub. L. No. 111-31; see also 21 U.S.C. §§ 387-387u). The attorneys general of California and 39 other states and territories have urged FDA to move quickly, citing potential health risks to children.

While they wait for federal standards, states and cities across the country have banned e-cigarettes in workplaces, restaurants, and bars. But the industry keeps growing: A Wells Fargo analyst estimated in December that e-cigarette sales could top $1.8 billion in the United States in 2013 and surpass traditional cigarettes within a decade.
The three biggest American tobacco companies have entered the market: Lorillard Inc. sells the popular Blu e-cigarette and last fall acquired Skycig, based in the United Kingdom. Altria Group and Reynolds American both announced their own e-cigarette brands in June.

There’s been little independent research and no consensus on the health effects – positive or negative – from using electronic cigarettes or being near someone who’s using them. The battery-powered devices, sometimes made to look like regular cigarettes, deliver nicotine in a vapor when a user inhales. Advertisements aim to conjure nostalgia.

“There was a time when no one was offended by it,” says a television spot for Fin e-cigarettes, made by Fin Branding Group. “That time has come again.” Critics note similarities to tobacco advertising, down to the use of cartoons, celebrity spokespeople, and implications that “vaping” is sexy.

“We are really going back,” says Cynthia Hallett, executive director of Americans for Nonsmokers’ Rights in Berkeley. “E-cigarettes are currently unregulated, and [makers] are just running amok until they are told to do otherwise.”

The FDA has had the authority since 2010 to restrict the content, labeling, and Internet sales of e-cigarettes, the same way it regulates traditional cigarettes; it can’t regulate how they’re used. Larger e-cigarette manufacturers see limited regulation as a means of gaining more solid footing for the industry. But Phil Daman, an attorney and president of the Smoke Free Alternatives Trade Association, says e-cigarettes should be viewed as an alternative to smoking, not a public health problem. “Here, our government has an opportunity to leverage these products to help fulfill [its] goal of reducing tobacco consumption,” Daman says.

In 2010, in the absence of federal action, California’s then-Attorney General Jerry Brown sued e-cigarette maker Smoking Everywhere, Inc. (now defunct), alleging the company targeted minors and misled consumers. The state subsequently settled with both Smoking Everywhere and Sottera, maker of Njoy. (Sottera consented to judgment prior to the filing of a complaint.) (See People v. Smoking Everywhere, Inc., No. RC10493637 (Alameda Super. Ct. stipulated judgment filed Nov. 2, 2010); and People v. Sottera, Inc. (Alameda Super. Ct. consent judgment filed Sept. 10, 2010).) The companies promised not to market to minors or claim that e-cigarettes are safer than traditional cigarettes. California later outlawed sales of e-cigarettes to minors, and a spokesman for the present AG, Kamala Harris, says her staff continues to monitor the issue.

Marin and Santa Clara counties and Los Angeles and several other California cities now regulate e-cigarettes essentially like traditional cigarettes. So do scores of other cities nationwide and Utah, New Jersey, and North Dakota. But a proposal by Sen. Ellen M. Corbett (D-San Leandro) covering California (SB 648) got stuck in an Assembly committee last year.

“It certainly was the most important usage ban we’ve dealt with,” says Gregory Conley, a lawyer and adviser to the Consumer Advocates for Smoke-free Alternatives Association, which helped “vape shops” and “vapers” organize against the bill. “I don’t know what direction [Corbett] is going, but it will be interesting to see.” Corbett said she hadn’t decided.

Tobacco II

The California Supreme Court, in In re Tobacco II Cases (46 Cal. 4th 298 (2009)), held that only the named plaintiffs asserting a representative UCL claim–and not all absent class members–must meet Prop. 64’s heightened standing requirement. The court further held that to establish standing in a private action brought under the UCL’s fraud prong, class representatives must plead and prove actual reliance on the defendant’s alleged misstatements (Tobacco II, 46 Cal. 4th 298, 306 (2009)). See more in the entry about Tobacco in this legal reference.

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