The gravest threat to the U.S. vapour industry comes from local government. While state-level attempts to regulate the industry have been largely unsuccessful, hundreds of local laws have come into force.
The most popular move has been to integrate e-cigarettes into existing ordinances mandating clean indoor air. Vaping is now prohibited in 100% of smoke-free spaces in many large metropolitan areas – such as New York City, Chicago, and Los Angeles – and in small towns, such the cities of Pooler, Georgia and Lighthouse Point, Florida.
This wave of legislation has been spurred—and often funded—by public-health agencies. Active parties include the National Institutes of Health (NIH) and the Centers for Disease Control and Prevention (CDC), as well as not-for-profit organisations such as the Campaign for Tobacco-Free Kids and the Cancer Action Network.
And this is just the beginning. There are nearly 90,000 local governments in the U.S. – almost all of which may restrict the use of e-cigarettes.
Moreover, given widespread disappointment in the failure so far of the federal Food and Drug Administration (FDA) to issue a final rule for e-cigarette regulation, as well the amount of money that has been dedicated to anti-smoking and anti-vaping projects, it’s a safe assumption that health groups will continue to fight vaping at the local level – using weapons that include zoning.
Not in my back yard
Anti-tobacco bodies are campaigning for the location of new e-cigarette retailers to be restricted under zoning laws, which enable local governments to divide land into districts so that they can control development to protect the health, welfare, and safety of the public.
Zoning is an important tool in urban planning. But it can also be used for specific purposes arguably beyond the confines of that discipline, such as banning drive-throughs but allowing dine-in restaurants, or restricting the sale of certain products in particular areas.
And this is exactly what’s happening with e-cigs in some areas.
More than 200 local governments and one state (Utah) have tried to restrict the location of independent e-cigarette outlets. Many of these attempts have not affected other retailers, such as convenience stores, gas stations, pharmacies, and liquor stores—all of which may sell e-cigarettes.
Local governments have used three methods so far: complete bans on vaping lounges, limits on retailer locations, and temporary moratoria on new stores.
Many local governments prohibit the establishment of smoking lounges in their zoning codes. To ban vaping lounges, the locality simply needs to amend the code so that e-cigarettes are treated like tobacco products. Long Beach, California made such a move, for example.
Secondly, zoning prohibitions may be used to stop retailers selling vapour products within a certain distance of places such as public parks, schools, day care centres, playgrounds, sports fields, and churches. Lake County, Oregon enacted this kind of ban last December.
Local governments may also implement temporary moratoria on new businesses selling e-cigarettes. In 2014, the city of Camarillo, California banned the issue of any land use entitlement for new e-cigarette businesses for 45 days.
Off the streets
It is only a matter of time before large metropolitan areas rewrite their zoning codes in similar ways to regulate vapour products. If successful, such strategies could negatively impact thousands of new independent vapour companies – yet benefit other, competing retailers.
Moreover, e-cig specialist retailers mainly stock later-generation products such as refillable tank systems and e-liquids, while convenience stores and gas stations tend to sell cigalikes and closed-system e-cigarettes, which are often manufactured by Big Tobacco companies.
This could exacerbate the tension between the vapour and tobacco industries and undermine efforts for the two sectors to work together to overcome the upcoming onslaught of regulation.
What can be done about this?
Although the adolescent vapour industry does not have the financial resources to combat hundreds of local ordinances at the same time, the industry’s strongest weapon is its ability to organise thousands of individual vapers and independent vape companies against proposed legislation.
This has primarily been accomplished online through the use of social media networks such as Reddit, Facebook, and Twitter.
If the nascent industry’s battle is to succeed on the local level, these viral calls to action must continue to mobilise vapers and businesses. Networks of local e-cigarette companies can fight zoning ordinances by opposing such development proposals at public hearings.
ECigIntelligence does not provide legal, strategic or investment advice. Tamarind Media Limited, the publisher of ECigIntelligence, does not accept any liability or responsibility for information or views published.
Please see this page for a detailed description of our methodology.