County health department doubles down against e-cigarettes, appeals ruling

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The Tacoma-Pierce County Health Department is appealing a Pierce County Superior Court decision last week that stated the agency overstepped its authority regarding rules and requirements for retailers of e-cigarettes and nicotine-infused vape juice that were stricter than state law.

Judge Edmund Murphy ruled that the health department regulations that limited the number of customers who could sample products at the same time while within a shop required stores to install costly ventilation systems. He also ruled that the department’s regulations that required retailers to have licenses to sell juices and products ran afoul of state law because the regulation of e-cigarettes and vape juices falls exclusively to the state’s Liquor and Cannabis Board.

“This is clearly contrary to the legislative intent, plain meaning and statutory scheme of (state law), which vests the State with this exclusive authority,” Murphy wrote in his decision.

State law allows local government involvement only when the state has chosen to work with the local health departments to conduct inspections and ensure compliance with the state laws, or when the local jurisdiction believes a specific product may pose a significant health risk that requires investigation by the state agency, the judge continued in his order that granted a permanent injunction against the rules being enforced. “However, in direct violation of this plain meaning and statutory scheme, (the health department) has enacted numerous rules that allow it to engage in regulation of licenses and retail operations, and to issue penalties, without the required State involvement and far outside of the limitations…”

Murphy did, however, state that the health department acted in good faith when enacting the rules in 2015 and denied a request that it pay attorney fees and costs associated with the lawsuit against the regulations. That said, the fight isn’t over.

“We think the judge got it wrong. Tacoma-Pierce County Board of Health has the authority to take this action,” said health director Anthony L-T Chen. “And the state law does not prevent us from taking additional steps to protect the health of our residents. New research shows more worrisome health effects. We plan to appeal.”

The driver of the health department’s fight is the rationale that tobacco use remains the leading cause of preventable death in Washington, and the growing popularity of e-cigarettes is creating a whole new pipeline of future tobacco users after decades of decline.  This is particularly the case for children, who are drawn to e-cigarettes because the juices used in them often come in fruit or candy flavors and can easily be hidden from parents and school teachers, who have watchful eyes against underage smoking. Electronic cigarettes are illegal for anyone under the age of 18 but are often obtained from older friends or even bought by parents for their children as a way to keep them from smoking regular tobacco products.

“We are not just talking about high school but middle school, and I have heard of even elementary school kids being caught vaping,” Health Department spokeswoman Edie Jeffers said, noting that a 2016 survey concluded that 14 percent of 10th graders and 18 percent of high school seniors had used e-cigarettes during the previous month. “What we see is the trend is increasing.”

The health department’s goal is to stem that trend, particularly since vape juice routinely contains nicotine, which can interfere with brain development in underage users as well as promote addiction and lead to long-term tobacco use. The U.S. Food and Drug Administration recently called teen vaping a national epidemic.

None of this is news to the Pink Lung Brigade, a group of e-cigarette retailers and juice makers that promotes vaping as a safer alternative to smoking. The nonprofit worked with state lawmakers three years ago on laws meant to keep e-cigarette products away from children but filed the suit over the Tacoma-Pierce County Health Department’s regulations.

“I don’t know why they thought they needed to do these things,” said Pink Lung Brigade Vice President Marc Jarrett. “It’s just the weirdest overreach.”

Regulations prohibiting the sale of vaporizing products to children is one thing, Jerrett said. Forbidding the sale of food, beverages or not allowing shops to have lounge chairs is quite another.

“This has been a long road,” he said. “It was very expensive for it. I think it was more expensive to the taxpayers, however.”

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