In depth: e-cigarette regulation in Texas, February 2015

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CONTENTS

 

 

 

Executive summary

 

  • Texas state law does not regulate e-cigarettes – not even their sale to minors – and there is no federal law that regulates the products in Texas.
  • The Texas e-cig market therefore is primarily regulated on a local level, by zoning laws and public-use ordinances. About a dozen of 5000 municipal governments restrict the use of e-cigs in smoke-free locations, while many entities within the University of Texas system have prohibited their use on campus.
  • ECigIntelligence believes the sale and use of e-cigs in Texas will be regulated on a local or quasi-governmental level for the foreseeable future.

 

 

Introduction

 

  • The U.S. has the most complex set of e-cigarette regulatory regimes in the world. The Food and Drug Administration (FDA) proposed “deeming regulations” in April 2014 that, if adopted, would put e-cigs in the same category as tobacco products. This would subject them to an onerous layer of federal regulation, on top of laws that are continuing to emerge at a state, local, and municipal level. However, we anticipate it will be one to three years before the FDA finalises any such rules.
  • Meanwhile, the state of Texas has not yet considered legislation that would regulate e-cigs in the same manner as tobacco products, which themselves are only prohibited in limited circumstances. (See appendix.)
  • The political will to regulate e-cigs at state level does not appear to exist at this time.
  • However, both federal and state consumer protection laws do affect the e-cig industry and offer protection for consumer rights.
  • Nearly 5000 local governments in Texas have regulatory authority over e-cigs, including significant cities such as Dallas, San Antonio and Houston. Although only a small percentage of these bodies have enacted legislation, local governments are increasingly looking at regulating e-cigs, with measures that control – among other things – the places where they can be used, by prohibiting them in workplaces, bars, and restaurants, and even parks, beaches, and outdoor dining areas.
  • Quasi-governmental institutions, such as state-funded colleges and school districts, also regulate e-cigs. Texas’s state-funded colleges have substantial student bodies and significant staff numbers; some of them are effectively the size of small cities and regulate activity on their campuses, including e-cig use.
  • This report will consider legislation at the state level, followed by the local and quasi-governmental levels, and will then identify e-cig regulatory trends in Texas.

 

 

The matrix of authority

 

governing body tax restricted use             e.g. public   places marketing –TV ads marketing –price, e.g. free samples marketing –other age restriction zoning prohibition                   of sale
state legislature NE NE NE NE NE N N NE
any county government RR RR N RR RR RR RR RR
any municipal government RR RR N RR RR RR RR RR

NE = not exercised, N = no right to regulate, Y = yes, regulated, RR = right to regulate.

  

 

State government regulation

 

Texas has not enacted statewide regulation on e-cigs, and is one of only nine states that have not prohibited their sale to minors.

However, three bills have been filed to regulate sales to people under the age of 18 and prohibit e-cig use on public-school property; the Texas legislature will consider these bills during its 2015 session. The Texas Medical Association and Texas Public Health Coalition will lobby legislators to implement such laws.

While state law does not regulate e-cigs, Texas laws protect the rights of consumers. For instance, trade practices are regulated by the Texas Business and Commerce Code. Many Texas consumer protection laws could be triggered in the context of e-cigarettes, including complaints of unfair business practices or untrue or misleading advertising.

For example, any advertising of an e-cig as a safe alternative to smoking or as a smoking cessation device would be considered misleading and held in violation of consumer protection laws because the FDA has not approved such claims. (See appendix.)

 

 

Local government regulation

 

Local governments may regulate e-cig usage more strictly than state law. Only about a dozen local governments in Texas have taken measures so far, although others are pondering their own.

 

Age restrictions

 

Local governments have already begun restricting sales to minors. Cities with age restrictions include:

  • Avery
  • Watauga, which notably, but unsuccessfully, also attempted to ban the general sale of e-cigs in April 2014.
  • Murphy

 

Many e-cig stores in Texas have adopted voluntary age-restrictive policies.

 

Public-use laws

 

The following localities in Texas restrict e-cig use in most enclosed workplaces, including restaurants; in the majority of cases the prohibition also covers bars, and in some of them gambling facilities as well.

  • Frisco (not gambling facilities)
  • Lufkin
  • Harlingen
  • Joshua (not gambling facilities or bars)
  • San Angelo (not gambling facilities)
  • San Marcos (not gambling facilities)
  • Socorro (not gambling facilities)
  • Waxahachie
  • Wichita Falls (not gambling facilities)

 

Weatherford, meanwhile, has taken the unusual step of only restricting e-cig use in enclosed restaurants.

In contrast, the city of San Antonio has explicitly stated that its smoking ordinance does not apply to e-cigs.

 

Licensing laws

 

Richardson is the only town in Texas that has enacted an e-cig licensing law and requires a special permit for e-cig businesses.

In October 2013, Mansfield City Council put a moratorium on retailer permits for vape stores, to consider how e-cigs fit into the city’s no-smoking ordinance.

City councils could also require retailers to satisfy background investigations before opening their stores.

 

Zoning laws

 

Municipal zoning commissions have the authority to implement ordinances in order to control the number of e-cig retailers or lounges, and/or preventing such businesses from opening in a particular zoning area. However, no local governments in Texas have passed such laws yet.

 

 

Regulation by quasi-governmental institutions

 

Some Texas state bodies that would not normally be considered part of “legislative government” nonetheless exercise considerable control over e-cigarettes. Although such institutions are not exempt from local, state, or federal laws, any analysis of regulation in Texas is incomplete without considering the effect of such quasi-governmental regulatory regimes.

The effect of regulation by quasi-governmental institutions such as the state-funded University of Texas (UT) is potentially huge. UT is one of the largest employers in Texas, with more than 214,000 students and 90,000 faculty and staff members across nine universities and six health institutions.

Four of the universities and two of the health institutions have adopted tobacco-free policies.

As of 2012, UT Austin’s Tobacco-Free Campus Policy has banned the use of all tobacco products and simulated tobacco products, including e-cigs, on its campus. This affects more than 52,100 students and 24,000 faculty and staff members.

UT explains that e-cigs are banned because “[t]he FDA does not consider e-cigarettes to be a safe nicotine delivery system or smoking cessation strategy and their use is prohibited on university property for purposes of this policy… [h]owever, other forms of approved nicotine replacement therapy such as gum and patches are available in the campus Forty Acres Pharmacy…”.

 

 

Regulatory trends

 

As we have seen, although there is no statewide tobacco or e-cigarette ban, some local governments are beginning to consider regulating e-cigs in the same way as traditional cigarettes by prohibiting vaping in some public places.

Outside of government regulation, businesses and private property owners may implement voluntary policies to limit e-cig use on their premises.

Likewise, employers may restrict their employees’ e-cig use through policies that prohibit vaping, and landlords may incorporate an anti-vaping provision in their tenants’ contracts.

Here are two notable examples:

  • Fast food restaurants In-N-Out and Starbucks have prohibited e-cig use in the north Texas city of Mansfield.
  • Some businesses in Houston are deciding whether e-cigs should be included in their respective companies’ smoking policies.

 

 

Appendix: state law on tobacco and consumer protection

 

Tobacco

 

Texas Penal Code Section 48.01

(a) A person commits an offense if he is in possession of a burning tobacco product or smokes tobacco in a facility of a public primary or secondary school or an elevator, enclosed theater or movie house, library, museum, hospital, transit system bus, or intrastate bus…plane, or train which is a public place. 

 

Texas Health and Safety Code Ann. §161.252

 

The Texas Health and Safety Code adds tobacco substitute to the definition of “tobacco products” prohibited for minors under 18. However, the state does not consider e-cigarettes to be tobacco substitutes.

 

Consumer protection laws

 

Consumer rights in the U.S. are protected by federal and state laws. The Federal Trade Commission (FTC), Consumer Financial Protection Bureau (CFPB), and U.S. Department of Justice (DOJ) create and enforce federal consumer protection laws, while all but four states enumerate the rights of consumers in their respective constitutions. In addition, most states have a department of consumer affairs, and many have adopted the Uniform Deceptive Trade Practices Act (UDTPA).

Texas’s primary consumer protection law is the Deceptive Trade Practices Act (DTPA), which prohibits business practices deemed as false, misleading, or deceptive. Under the DTPA, consumers have the right to sue for damages, receive attorney’s fees, and – provided evidence exists that the defendant acted “knowingly” – receive punitive damages as well.

 

Texas Business and Commerce Code, section 17.46: Deceptive trade practices unlawful

 

False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and subject to action by the consumer protection division under Sections 17.47, 17.58, 17.60, and 17.61 of this code.

…[T]he term “false, misleading, or deceptive acts or practices” includes, but is not limited to, the following acts:

(2) Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;…

(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have…

(11) Making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions.

– Carly Souther ECigIntelligence staff

 

The author

Carly Souther, legal and regulatory analyst, ECigIntelligence. Carly is a graduate of the Florida State University College of Law and also has a BA in political science from Mercer University. She was admitted to the Florida Bar in 2013, and was assistant general counsel at Florida’s Agency for Health Care Administration (AHCA). She is currently studying for a postgraduate master of laws (LLM) degree on a part-time basis.

 

Photo: Clinton and Charles Robertson

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