Including a Novel Tobacco Product in Oregon’s Indoor Clean Air Act: Lessons Learned for Clean Air Policy,2015-2016

Establishing and maintaining smoke-free air laws is a best practice of comprehensive tobacco prevention programs. ¹ It is well accepted that smoke-free laws reduce exposure to secondhand smoke, increase cessation attempts, increase perceptions of harm among young people, and decrease tobacco initiation among young people. ² However, the innovation and introduction of new tobacco products by the tobacco industry may jeopardize state smoke-free air laws. Electronic cigarettes (e-cigarettes), a relatively new form of tobacco, are now the most widely used product among young people nationally, offsetting declines in tobacco cigarette smoking. ³ Despite the acknowledgment that e-cigarettes have the potential to benefit adult smokers if used as a complete substitute for smoked tobacco products, ⁴ a 2016 surgeon general report concluded that e-cigarette aerosol was not harmless, citing several experimental studies finding the presence of potentially harmful constituents such as nicotine, heavy metals, ultra-fine particulate matter, and volatile organic compounds. ⁵

As of September 30, 2017, only 8 states, the District of Columbia, and Puerto Rico had passed comprehensive smoke-free indoor air laws that included e-cigarettes to prevent involuntary exposure to secondhand aerosol. ⁶ Oregon was among these early adopters and built upon the state’s comprehensive Indoor Clean Air Act (ICAA), which has prohibited smoking in indoor areas of worksites, restaurants, and bars since 2012, through the passage of House Bill 2546 (HB 2546). Signed into law on May 26, 2015, HB 2546 was notable not only for including e-cigarettes in Oregon’s ICAA but also for creating novel legal definitions for e-cigarettes and e-cigarette emissions, not including an ICAA exemption for e-cigarette retail stores (also called “vape shops”) and prohibiting e-cigarette sales to people aged <18. ⁷ Interviews conducted in October and November 2016 with Oregon legislators, local public health staff members, and public health lobbyists involved in the HB 2546 policy process offered an opportunity to reflect on how this policy was passed and provided lessons learned for other states pursuing similar smoke-free policies. A detailed account of interviews with these stakeholders is available online. ⁷

Although HB 2546 passed during the 2015 Oregon legislative session, the first attempts to regulate e-cigarettes occurred 1 year earlier. Two e-cigarette–focused bills introduced during the 2014 session were considered “mostly trial balloons that weren’t going to go anywhere” by a legislator ⁷ and were hampered by a lack of political will to regulate a relatively unknown product. However, the 2014 session proved valuable for increasing awareness of e-cigarettes (including use among young people and uncertain health risks) and the lack of regulations in Oregon (including product standards and restricting sales to those aged ≥18). The 2014 session also served as an opportunity to identify legislators’ questions and opposing viewpoints that would need to be addressed in the 2015 session. The 2014 session also created a tenor for discussions on protecting young people and enforcing the ICAA.

The failed bills in 2014 also led to the formation of a highly regarded workgroup convened by an experienced Oregon legislator who had championed several tobacco policy efforts in the past. Pre-session workgroups are not uncommon, but this workgroup was characterized by stakeholders as essential to the bill’s passage and noted for its well-organized and consistent meetings, consideration of multiple voices (including those of the vape industry), and general responsiveness to feedback from workgroup members. The workgroup established the scope of the bill, considered the bill’s effect on existing tobacco laws, and drafted language for the bill. These functions ensured that the bill was essentially complete when it hit the legislature floor.

The workgroup focused substantial energy on creating new legal definitions for e-cigarettes and their emissions. E-cigarettes were included in a broad product category called “inhalant delivery systems” and defined as “a device that can be used to deliver nicotine or cannabinoids [ie, marijuana] in the form of a vapor or aerosol to a person inhaling from the device.” ⁸ This definition contrasts with other states that incorporated e-cigarettes into existing legal definitions for tobacco products. ⁹ Although Oregon workgroup members considered this option, policy stakeholders opted for a new, broad legal definition that would cover products as they existed, as well as account for future product innovation and diversification by the vaping and tobacco industries (including the emergence of a recreational marijuana market). Indeed, tobacco control researchers noted that definitions separating e-cigarettes from other tobacco products may undermine regulation unless e-cigarettes are broadly defined, do not require nicotine or tobacco, and are explicitly included in smoke-free laws. ⁹

The bill also included e-cigarette aerosol in a new definition termed inhalant, meaning

nicotine, a cannabinoid or any other substance that: (a) is in a form that allows the nicotine, cannabinoid, or substance to be delivered into a person’s respiratory system; (b) is inhaled for the purpose of delivering the nicotine, cannabinoid, or other substance into a person’s respiratory system. ⁸

Policy process stakeholders noted the balancing act of accounting for future evolutions of the product and mitigating unintended consequences, such as having a too-broad definition that prohibits the use of asthma inhalers in public places. Ultimately, stakeholders reasoned that a comprehensive definition of the product and its emissions would make for easier enforcement of Oregon’s ICAA and proactively account for impending legalization of recreational marijuana in Oregon (which voters would pass through Ballot Measure 91 in November 2014).

Proponents of the bill included not only stakeholders from local and state public health departments and public health lobbyists but also partners not traditionally involved in tobacco legislation. Most notably, representatives from the Building Owners and Managers Association of Oregon and the Oregon Association of Chiefs of Police were early supporters of the bill, largely because of concerns with enforcing the state’s ICAA after legalization of recreational marijuana. Stakeholders with enforcement responsibilities wanted clear guidelines for dealing with ICAA violations, regardless of whether a device was used for marijuana, nicotine, or “rose water,” as one legislator wryly explained. ⁷ These nontraditional stakeholders participated in the pre-session workgroup to draft the bill and provided practical testimony during the 2015 session on how ICAA exemptions would complicate enforcement. Testimony from these partners complemented standard public health testimony on surveillance data and emerging research and was seen as vital by a local public health staff member to breaking free of the “public health echo chamber.” ⁷

The primary opponents of the bill were product consumers and members of the burgeoning, but diffuse, vape industry. At the time of the bill’s passage, the industry was relatively new and lacked legislative experience. Several missteps by industry representatives and e-cigarette consumers undermined their credibility with legislators, including vaping a flavored e-cigarette during session (after being asked to refrain by a committee member), describing e-liquid manufacturing in a way that made it sound homegrown and haphazard, and emphasizing business profitability rather than potential health concerns. Interestingly, a tobacco industry lobbyist eventually expressed support for the bill because the proposed packaging and labeling requirements would not adversely affect the industry’s existing prepackaged products sold primarily in convenience stores. The vape industry will probably provide stronger opposition in the future as it grows and galvanizes a lobbying force.

Three crucial decisions influenced the success of HB 2546. First, the broad definitions of inhalant delivery systems and inhalant helped solidify a diverse coalition of supporters, including lawmakers who wanted to proactively account for marijuana in the state’s ICAA and mitigate likely enforcement complications. The definitions also offered the flexibility to respond to future product innovations in the hope of providing a more sustainable policy win. Second, prioritizing the bill’s objectives to focus on access and restrictions among young people and inclusion in the ICAA was deemed instrumental to the policy’s passage. Specifically, one legislator noted a proposed taxation component of HB 2546 as “too big a lift that would have undoubtedly killed the bill.” ⁷ Focused objectives were essential to maintaining a united front against potential amendments and supported stakeholders in crafting and consistently delivering the same messages during session. These messages focused on access and use restrictions among young people (coupled with state surveillance data showing 3-fold and 4-fold increases in e-cigarette use among 8th graders and 11th graders, respectively, from 2013 to 2015) ¹⁰ ; nicotine’s known negative effects on young people’s developing brains and uncertain long-term health effects of e-cigarette use; lack of product standardization in an unregulated market; and preserving the integrity of Oregon’s historically strong ICAA and ensuring uncomplicated enforcement of the law.

Third, HB 2546, as introduced, did not include an exemption to Oregon’s ICAA for indoor product sampling in vape shops. This decision was made early in the pre-session bill writing workgroup to both preserve ICAA integrity and opt for the precautionary principle in the absence of e-cigarette product regulations and substantive research on health effects. Public health advocates remembered as a cautionary tale a 2009 ICAA amendment that allowed indoor smoking in certified smoke shops and was used to establish hookah lounges that appealed to young people. The number of hookah lounges in Oregon increased from 1 to 20 in the 2 years after the amendment was adopted. ¹¹ Despite policy stakeholders agreeing to an exemption-free bill early in the policy process, the vape shop exemption posed the greatest challenge for proponents during legislative session. Internally, the exemption issue revealed differences on what key policy proponents were and were not willing to concede, with one bill sponsor believing that “getting the main concept through was more important than getting it 100 percent right” and considering the indoor sampling exemption as “a minor compromise.” ⁷

Despite the vape industry missteps described previously, legislators appeared sympathetic to vape shop owners’ testimony that prohibiting indoor vaping would have financial consequences for their small businesses and product users’ assertions that being able to use e-cigarettes socially in vape shops was crucial to their tobacco cessation efforts. Although e-cigarette health and safety concerns would ultimately outweigh the issues brought forth by exemption proponents, the bill was amended to delay implementation of ICAA restrictions for 6 months, and provisions were made to revisit the law in 5 years to account for changes in the status of e-cigarettes as a US Food and Drug Administration–approved cessation device. HB 2546 passed without an exemption, but a bill introduced in the 2017 Oregon legislative session (Senate Bill 799) revived the issue and would have amended the ICAA to allow indoor use of non-nicotine, non-cannabinoid e-cigarettes in vape shops for sampling purposes. ¹² Although this bill did not pass, and smoke-free air laws without carve-outs for businesses should be the gold standard, the 2017 legislative session shows that ongoing vigilance by policy advocates is needed after bill adoption.

Several experiences from the HB 2546 policy process in Oregon may be particularly useful for other state tobacco prevention programs pursuing comprehensive smoke-free air policy. First, the legalization of recreational marijuana, regardless of one’s opinion of it as public policy, presents a window of opportunity for tobacco control advocates, specifically, by building bridges with nontraditional partners based on the shared values of protecting young people and enforcing state law. Inclusion of cannabinoids in the definitions of inhalant delivery systems and inhalants ensured that indoor use of marijuana in public places would not be allowed under the state’s ICAA. These definitions garnered support for the bill from legislators on both sides of the aisle, particularly more conservative legislators not historically supportive of tobacco regulations. Two bills (Senate Bills 307 and 788) were introduced during the 2017 Oregon legislative session to allow indoor use of marijuana in licensed cannabis lounges and outdoor use at licensed temporary events. ^13,14 Similar to the revived exemption for vape shops, these bills did not pass, but they showed that staving off marijuana-related exemptions will require continued engagement and support of public health partners and advocates.

Second, we found that local public health capacity to collect photographs and local data on e-cigarette sales in tobacco retail environments and then quickly mobilize to share those photographs and data with legislators was crucial to the policy process. In the year preceding HB 2546, the Oregon Tobacco Prevention and Education Program had distributed 1-year grants to county programs with existing capacity to initiate policy and systems change initiatives. Some of the data collected as part of those grant projects were ultimately used in testimony at both local and state hearings to make the issue more concrete for legislators. ¹⁵

Third, county e-cigarette ordinances played a key role in passing a strong statewide policy. Before the 2015 legislative session, 2 of Oregon’s most populous counties passed comprehensive, exemption-free e-cigarette ordinances. These local policies provided a precedent for stakeholders to advocate for an equally strong state law to maintain the integrity of the state ICAA and ensure that local policies were not weakened. Notably, Oregon counties are not preempted from passing clean air policies stronger than the state’s policies, which is not the case in all states and jurisdictions. Ensuring that local jurisdictions are not preempted from passing strong policy should be a primary objective of all state tobacco prevention programs.

The tobacco industry will continue to introduce novel products and innovative marketing strategies. Philip Morris International’s website (https://www.pmi.com) focuses on “designing a smoke-free future” and heralds the development of “smoke-free” alternatives for current cigarette smokers, including their newer “heated tobacco” product category (tobacco products that produce aerosols containing nicotine and other chemicals that are inhaled through the mouth). ¹⁶ Given product diversification and the industry’s own use of harm-reduction language, how can tobacco prevention advocates manage this ever-changing landscape? Every policy process is dynamic and depends on context and timing, but lessons learned from successful policy processes can guide future efforts in Oregon and elsewhere. HB 2546 focused on inhalant delivery systems (e-cigarettes), yet lessons learned in Oregon—such as the importance of adaptive legal definitions, prioritizing bill objectives, navigating exemptions, and finding common ground with partners not traditionally involved in tobacco control—can be applied to any new product that could affect clean air policies. Understanding and managing the contextual and interpersonal factors that contribute to policy passage are required skills in 21st century tobacco control and prevention.