Healthier Air

No Vaping in Public Places Policies in Washington State

Washington State’s 2016 Vapor Products law (RCW 70.345 and WAC 314-35) prohibits vaping in a few public places, focused on protecting children. By state law, vaping is prohibited:
• inside and around schools and child care facilities.
• in outdoor playgrounds during daylight hours with children present.
• inside school buses and inside elevators.

These state restrictions on vaping in public are very different that WA’s stronger No Smoking in Public Places law, a.k.a. SIPP, RCW 70.160. Smoking in public has been prohibited throughout WA since 2005 in all indoor public places and places of employment. As a result of this disparity, many local health boards are taking policy action to prohibit vaping in these same venues, as well as in some outdoor spaces that kids frequent.

Local authority: The WA Vapor Products law authorizes local jurisdictions to restrict the use of vapor products in indoor public places and in outdoor public places where children congregate.

As of October 2020, thirteen counties in WA and a number of cities have adopted no vaping in public places laws. Generally, these local laws prohibit vaping any substance in the same indoor places where smoking is prohibited. Four of these ordinances also prohibit vaping in outdoor places where children congregate, like parks, athletic fields, and beaches. A fifth county has accomplished similar protections through a separate ordinance prohibiting smoking and vaping in all county park areas.

These No Vaping in Public Places regulations have been enacted by the local Boards of Health and local health departments in thirteen of Washington’s thirty-nine counties under their authority to protect the public health. The 13 WA counties are: Clark, Grant, Jefferson, King, Kitsap, Kittitas, Pierce, San Juan, Skagit, Snohomish, Spokane, Thurston, and Whatcom counties.

80%  of Washington residents live in areas where use of vapor products is prohibited in public places under No Vaping in Public Places regulations.

I’ve worked to develop the policy and supporting evidence for passage of the vaping ordinances in Snohomish, Whatcom. Skagit, Jefferson, and Thurston counties, and consulted with additional local health jurisdictions on their policy and public process. It is encouraging to see more local ordinances are in the works given the very discouraging ongoing epidemic of teen youth vaping and its popularity among young adults.

Background on Regulations on Sales and Use of E-Cigarettes & Vapor Products

Federal E-cigarettes and other vapor products were largely unregulated at the federal level until 2016 when the FDA finalized its Deeming Rule to regulate electronic nicotine delivery systems (ENDS) as tobacco products under the Tobacco Control Act. ENDS, or vapor products, include:e-cigarettes, e-hookahs, vape pens, and all other battery-operated products that use heat to create an aerosol. The Deeming Rule also applies to other types of nicotine-containing products: pipe tobacco, hookah tobacco, cigars, dissolvable tobacco products, nicotine gels, and other novel and future tobacco products.

Some aspects of the FDA’s Deeming Rule have taken effect since August 2016, such as:

• Prohibiting retail and internet sales of vapor products to minors under 18 nationwide, and requiring ID checks.
  • Update: A number of states have raised the minimum age for purchase of tobacco and e-cigarettes to 21 years old. Washington State’s new Tobacco 21 law took effect January 1, 2020 just after a federal Tobacco 21 law was finally enacted at the end of December 2019. WA’s state law allows for state level retailer compliance checks and enforcement of this age restriction.
• Prohibiting sales of vapor products through vending machines or self-service devices, except where minors are prohibited.
• Prohibiting give-aways of free product samples containing nicotine.
• Prohibiting false or misleading advertising for vapor products, including prohibiting health claims.
• Requiring warning labels, including at a minimum: “WARNING: This product contains nicotine. Nicotine is an addictive chemical.”

Also in 2016, the federal Child Nicotine Poisoning Prevention Act began requiring childproof packaging for nicotine e-liquids.

Other key parts of the FDA’s Deeming Rule have not yet been implemented. Timelines in the original rule were pushed back by the FDA in a July 2017 announcement. These delays mean there is still no pre-market regulation of specific vapor products. That deadline has been pushed back to August 2022.  Check the FDA’s website for current deadlines.

The FDA’s Deeming Rule preempts some state and local regulation of vapor products, but many state and local actions are still allowed.States, and local jurisdictions (depending on the state) can, for example, tax vapor products, regulate sales, and require information reporting from manufacturers..

The FDA Deeming Rule does not regulate the use of vapor products in public places. States and local jurisdictions can prohibit vaping in public places. Across the country, many states and hundreds of cities have added vaping to their smoke-free laws.

Washington State The WA Vapor Products law, RCW 70.345, took effect in June 2016 to regulate sales of vapor products to reduce youth access and establish a licensing system for vapor product retailers and distributors. My summary handout gives the highlights, with a focus on what local jurisdictions can and cannot do under this state law: Overview of WA Vapor Products Law.

The WA law requires a license for retailers and distributors of vapor products and establishes a licensing fee. The 2016 law also applied many of the sales restrictions that are well-established for cigarettes to vapor products, including photo id checks and signage at point-of-sale, no coupons for free products, no vending machine sales (unless minors are not allowed in the area).  Many of these same sales restrictions became federal requirements under the FDA’s Deeming Rule.

To address nicotine poisonings from potent e-juices, the WA law requires warning label statements, childproof packaging, and disclosure of nicotine content. Some of these requirements in the WA law have now been superseded by similar federal regulations.

Washington’s state laws regulating tobacco and vapor products preempt local regulation of product sales, limiting the actions that local jurisdictions can consider for prevention and control. Local jurisdictions are also preempted from local enforcement actions on sales restrictions, leaving all enforcement of the state laws to the Washington State Liquor and Cannabis Board.

However, local jurisdictions in Washington State retain authority to restrict the use of vapor products in public places. The WA Vapor Products law prohibits vaping in a few public places, focused on protecting children, but otherwise leaves regulation of vaping in public places to local jurisdictions.

Learn more about No Vaping in Public Places Policies in Washington State.