(The Kansas City Star/MCT) - The man at the nearby restaurant table is puffing away. Can he do that?
Maybe. It depends on what he’s smoking.
What about the woman at the desk next to yours. Can she light up throughout the workday?
If the smoke is actually vapor from an electronic cigarette – depending on where you are – they may be perfectly within their rights.
At least for now.
Any day now, the federal Food and Drug Administration is expected to issue a proposed rule about electronic cigarettes – a ruling that could send ripples into the workplace and other public places.
Except in a few locations, notably New York City, use of e-cigarettes isn’t specifically prohibited under the same laws or ordinances that ban tobacco smoking. Employers, though, may bar use on their properties if they choose. The relative lack of regulation and case-by-case handling to date could change, depending on whether the FDA regulates e-cigs as a tobacco product.
For now, whether you can use e-cigs on the job or in public venues usually is a case-by-case decision by employers and municipalities.
For example, Kansas City’s no-smoking ordinance says: “The possession of lighted smoking materials in any form, including but not limited to, the possession of lighted cigarettes, cigars, pipes or other tobacco products, shall be prohibited in all enclosed places of employment within the City.”
“E-cigs” – although they contain nicotine – are tobacco-free and aren’t regulated as tobacco products.
The ordinance “doesn’t include e-cigarettes, which are still an unregulated product,” said Jeff Hershberger, media specialist with the Kansas City Health Department. “But once the FDA comes to a decision, there probably will be a roll-down effect.”
Until then, most e-cig users are legally free to puff on the tobacco-free cigarettes, which heat up a chemical solution and emit a smoke-like vapor upon exhaling. The vapor doesn’t smell like tobacco smoke and, unlike tobacco products, there’s no evidence that someone sitting next to an e-cig user has second-hand health effects.
The FDA and the Office of Management and Budget, which now has the proposed regulation under review, do not reveal intended publication dates for proposed rules. But it could be imminent.
“The FDA intends to propose a regulation that would extend the agency’s ‘tobacco-product’ authorities – which currently only apply to cigarettes, cigarette tobacco, roll-your-own tobacco and smokeless tobacco – to other categories of tobacco products that meet the statutory definition of ‘tobacco product,’ ” said Jenny Haliski, the FDA’s media officer for tobacco-related inquiries.
At Aqueous Vapor, an e-cig shop in south Kansas City, Michael Wooderson said he welcomes some form of government regulation to help ensure the safety and quality of electronic products, particularly the liquid involved.
“Regulation could weed out the bad players and monitor the juice that we don’t always know what’s in it now, particularly if it comes from overseas,” Wooderson said.
Technically, e-cig users aren’t smoking; they’re “vaping,” by drawing breath through a disposable or rechargeable cylinder. The user inhales through a mixture of chemicals such as propylene glycol, a food preservative; vegetable glycerine, a sugar substitute; polyethylene glycol, a medicinal compound; and nicotine, a highly addictive drug.
The resulting e-cig vapor is unlike tobacco smoke, which, in addition to nicotine, contains tar, carbon monoxide, nitrogen oxide and other chemicals, including cyanide, benzene, formaldehyde, methanol, acetylene and ammonia. The American Cancer Society says at least 60 known tobacco-smoke ingredients can cause cancer.
Because most e-cig products give users a nicotine fix, the FDA is concerned about their use for public health reasons. That’s why e-cig use already is prohibited in Kansas City’s Truman Medical Centers facilities. They’re included in the hospital system’s “tobacco-free environment” policy.
“It’s not tobacco smoke, but it’s nicotine, and we feel that nicotine isn’t a healthy substance in any form,” said hospital spokesman Shane Kovac. “Also, it’s just disruptive if it gives the impression that someone – patient, staff or visitor – is smoking.”
The FDA hasn’t approved any electronic cigarettes as therapeutic, or medical, products, like nicotine patches. And to avoid medical regulation, e-cig makers make no therapeutic claims about their devices.
If the FDA doesn’t add e-cigs to the tobacco-regulation category, some business and government leaders could be more inclined to permit e-cig use as a stop-smoking tool. In fact, Kansas City employment-law attorney Tim Davis said he has a hospital client that allows e-cig use on its property, taking the stance that it’s preferable to tobacco smoking and may help users quit an unhealthy tobacco habit.
At Prier Products, a Kansas City-area manufacturer, the building and grounds went smoke-free in 2012, but e-cigs were allowed in the former designated outdoor smoking areas outside the building.
“We felt that even though it provided nicotine, it did not come with the smell or litter, and if someone were to use it to help break the habit, that was a good tradeoff for Prier,” said company president Nick Manning.
In practice, though, Manning said he can’t recall seeing someone use an e-cig in the designated areas.
The FDA’s attention also could speed up research into the health effects of long-term vaping. Unlike tobacco, e-cig substances haven’t been proven to cause cancer, but vaping is still in its infancy. The delivery system was developed in China in 2003, and there aren’t long-term health studies of users.
One FDA study in 2009 did find diethylene glycol, an antifreeze ingredient, in e-cig vapors, and a 2012 study at the University of Athens found changes in lung function by e-cig users. Other studies haven’t found harmful contaminants from vaping.
To date, the e-cig market has been estimated at just about 3 million users, far short of the estimated 44 million adult Americans who use tobacco products. But e-cig use is growing. About two dozen smoke shops in the Kansas City area sell at least one type of e-cigarette, with a handful of them selling e-cig products exclusively.
Major employers are noting the e-cig growth trend. Wal-Mart Stores and UPS are among companies that have taken the unhealthy view of e-cigs. Both are charging higher health-insurance premiums to employees who use e-cigs, just as they do for their workers who smoke tobacco products.
That kind of policy could grow widely if the FDA regulates e-cigs as tobacco products. The Affordable Care Act – Obamacare – permits insurers to charge up to 50 percent more for tobacco users. There’s no national survey yet that counts such policies.
For now, board members of the Society for Human Resource Management’s Kansas City chapter and several employment-law attorneys say the issue of regulating e-cigs in the workplace is fairly quiet.
“It’s not a big issue for us, but the question has been asked and we include electronic cigarettes in our policy prohibiting the use of tobacco products in the workplace,” said Hallmark Cards vice president Steve Doyal.
Other human-resource officials have quietly and individually said no to e-cig use on the job, not wanting to open the door to wider use.
Shelly Freeman, a Kansas City lawyer with HROI, a firm that advises employers on workplace law, said no clients had specifically asked about e-cigs, but that she would recommend including them in their no-smoking policies.
“They certainly have the right to prohibit it on their premises,” Freeman said. “But it also can depend on what city ordinances say, exactly.”
Freeman added that for many employers, the health question shares top billing with the age-old productivity question about smoking: Do smokers spend too much time on breaks?
That question, because of wide variation in individual work habits of both smokers and nonsmokers, has no definitive answer and depends little on whether it’s a tobacco or tobacco-free break.