Pioneer Valley communities passing, but not enforcing, e-cigarette bans

Last modified: Sunday, December 08, 2013

When electronic cigarettes appeared on the U.S. market in 2006, they were marketed as healthier, smoke-free alternatives to traditional cigarettes that could be used even in places where smoking is banned.

The devices, which usually resemble cigarettes, use a battery to heat liquid containing nicotine which becomes a vapor that can be inhaled. The practice is known as “vaping” because it involves vapor instead of smoke.

In the last few years, e-cigarettes have become more popular and it is common now to see patrons at Valley bars and cafes vaping indoors while smokers have to head outside to light up.

However, 12 communities in Hampshire and Franklin counties have prohibited the use of e-cigarettes in workplaces for years because of concerns they may be unhealthy to bystanders.

But the vast majority of employees at some bars, cafes and restaurants in three of those communities, Northampton, Amherst and Easthampton — as well as e-cigarette users — said in interviews during the past two weeks that they were not aware there were any limitations on where the devices could be used.

“There definitely needs to be an education campaign,” said Merridith O’Leary, the health agent in Northampton, where e-cigarette use in workplaces has been prohibited since 2010. While she’s never issued a $100 citation for a violation, O’Leary said she recognizes more work is needed to ensure compliance with the ban.

“As vaping is becoming more popular, we need to educate business owners, because I think they don’t know what they need to do,” she said. “I think when we passed the regulation in 2010, (vaping) wasn’t that popular, so no one really worried about it.”

She plans to notify many businesses with a letter on the topic within a few weeks.

Local health agents and area anti-tobacco coalitions argue the regulations are important to protect people from any unknown effects of second-hand vapor inhalation. But many said they have never reached out to businesses to inform them of the regulation and have never enforced it with warnings or citations. Without the money for compliance checks, they only enforce the ban based on complaints, and all of those interviewed said they have not received any.

While they may not be ensuring compliance, Pioneer Valley communities were ahead of the curve compared to the rest of the state in adopting e-cigarette regulations, including banning their use anywhere cigarettes cannot be smoked and prohibiting their sale to minors, according to Mary Kersell, coordinator of the Franklin-Hampshire Substance and Tobacco Prevention Partnership.

Kersell said communities including Northampton, Amherst and Easthampton have had the regulations in place since 2010. Other communities have adopted or started to consider them this year at the urging of Kersell’s agency and a similar organization, the Tobacco Free Community Partnership of Hampshire and Franklin Counties.

Only 86 of the 351 cities and towns in Massachusetts have approved some regulations on e-cigarettes, and 12 — or about 14 percent — are in Hampshire and Franklin counties. In addition to Northampton, Amherst and Easthampton, the workplace bans are in South Hadley, Hatfield, Deerfield, Sunderland, Greenfield, Buckland, Gill, Montague, and Wendell.

E-cigarette opponents argue that the devices should not be sold to minors because they are addictive and could lead to smoking cigarettes.

They reason that the devices should be banned in the workplace because the second-hand vapor has not been analyzed enough and could be harmful to others.

“Until we know they are safe products, we’re going to recommend regulating them,” Kersell said. “The boards of health feel this is a public health issue until the FDA makes a determination of their safety.”

FDA regulation

The Food and Drug Administration reported in 2009 that laboratory tests of some e-cigarette brands found toxins and carcinogens in the vapor.

After some legal wrangling with e-cigarette manufacturers over whether the devices fell under the FDA’s jurisdiction, the agency won a 2010 U.S. Court of Appeals case and announced in April 2011 that it will regulate e-cigarettes as tobacco products. But 2½ years later, it still has not issued regulations.

The Massachusetts communities that have passed the regulations are not alone in taking action on e-cigarettes while the FDA remains silent. Even entire states and other countries are imposing rules about how they can be sold or used.

New Jersey, Utah and North Dakota have passed laws banning their use in the workplace, and Massachusetts is among a short list of states considering similar bans. A bill that would ban sales to minors and vaping in workplaces and school or public property will soon come before the House for debate.

But David Lucchesi, an e-cigarette user who sells the devices at Vapers Haven shops in Easthampton and Wilbraham, said he does not see any reason to ban them in workplaces.

“It’s just water vapor,” he said in the Easthampton shop he owns with his wife, Eva-Maye Lucchesi. “People just think it’s bad because it looks like smoke.”

Lucchesi said his customers usually seem surprised when he informs them that Easthampton has a workplace ban. But the regulation has not affected his business, he said.

“People don’t buy them to smoke them in bars or restaurants,” he said. “They want an alternative to cigarettes.”

In fact, business is better than ever. “They’re catching on, for sure,” he said of the devices.

He and his wife started using e-cigarettes to be healthier, and within a week, he said, “I could breathe again.”

“I can actually run now, and get exercise, but I can still enjoy my habit,” he said.

The U.S. Centers for Disease Control and Prevention has said that e-cigarettes appear to have lower levels of toxins than traditional cigarettes.

A smoking gun

The issue of enforcing regulations is a complicated one, said Tami Gouveia, the executive director of Tobacco Free Massachusetts.

“If municipalities passed the regulations, it’s up to them to figure out how to enforce them,” she said. “The thing about compliance checks is they require resources.”

Kersell said that a local health agent or the Franklin-Hampshire Partnership’s compliance officer, former Easthampton health agent Dennis Lacourse, would enforce any complaints received about violations of a workplace ban. However, there have not been any complaints.

“Is there an educational component that could take place?” Kersell asked. “Probably, because they’re becoming more and more popular.”

The Amherst Board of Health on June 1, 2010, redefined “smoking” in its regulation to include non-tobacco products that are inhaled, so e-cigarettes are now barred in workplaces as well as in public areas.

“Anything that applies to cigarettes also applies to e-cigarettes,” Amherst Health Director Julie Federman said. Signs to that effect have been placed in parks, playgrounds and other gathering spots in Amherst, she said.

Federman said that if someone used an e-cigarette in a town park, or if a restaurant allowed patrons to use them, they would be informed that the devices are illegal before they would be given tickets.

Easthampton Health Agent Jackie Duda said she did not know if any businesses were notified of the regulation when the Board of Health approved it on Dec. 15, 2009. Lacourse, the health agent at that time, did not return calls seeking comment.

Like O’Leary and Kersell, Duda said she has not taken enforcement action because there have been no complaints in her 2½ years on the job.

If the board decides that ignorance of the regulation is an issue, she said, she could write a letter on the topic to all the establishments licensed to sell food or alcohol.

O’Leary said she will educate Northampton businesses about the workplace ban and the possible penalties by including a letter about it when she sends new permits this month to businesses regulated by the Board of Health. Those include any place that serves food or drink as well as hotels, pools, and others.

She has faith that business owners will enforce the regulation themselves as soon as they know about it, and added that making compliance checks is not possible now.

The Health Department provides “No smoking per the Board of Health” signs to businesses to post, and she said updating them to include e-cigarette use could also be helpful in increasing awareness.

Gouveia said that if the state Legislature approves a ban, it would likely mean more money for enforcement as well as education about a workplace ban.

That’s what happened when the state banned tobacco use in the workplace in 2004, she said, and now violations of that law are rare.

“I do believe there are a lot of retailers out there that are trying to do the right thing — they’re just not aware of the regulation,” Gouveia said. “These products are so new, and the regulations are new, so these things take a little time.”

Rebecca Everett can be reached at

The list of states that have approved workplace bans of e-cigarettes was corrected Dec. 9.


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