It may look like a cigarette, and it certainly delivers a dose of nicotine like a cigarette.
But Attorney General Tom Horne said Thursday that nothing in a voter-approved Arizona law precludes someone from “lighting up” one of these electronic cigarettes in bars, restaurants, museums or, for that matter, anywhere else where real cigarettes are banned. He said that, appearance or otherwise, they just don't fit the definition.
For the same reason, Horne said laws which tax cigarettes and other tobacco products also do not apply.
That has implications beyond those who smoke and those around them. That's because cash from the levies funds everything from smoking cessation programs to bolstering the state's Medicaid program.
Thursday's legal opinion is based largely on the fact that the law deals with tobacco products and these devices simply don't have tobacco.
But it likely does not open the door for those with a medical marijuana card to light up in public simply because what they're smoking does not contain tobacco. There are separate provisions within the Arizona Medical Marijuana Act that specifically bar use of the drug in public places.
Horne said, though, that nothing in the law — and nothing in his opinion — appears to limit the ability of the Legislature or even cities or counties from enacting their own bans on the devices.
A 2006 voter-approved law makes it illegal to smoke in public places, offices and restaurants. It also requires hotels to designate at least half their rooms as smoke-free.
Horne said the key word here is “smoking,” which he said is limited to “any lighted tobacco product.” And he said that the dictionary definition of “lighted” involves setting something on fire.
“All sources of information on electronic cigarettes indicate that there is no fire or ignition involved in their use,” Horne said. Instead, he said e-cigarettes use a battery to generate heat which, in turn, converts the liquid nicotine to vapor.
Potentially more significant, Horne noted that the ballot measure listed as its intent being to protect people from “the health risks of breathing secondhand tobacco smoke.” Since there is no tobacco smoke, he said, e-cigarettes are beyond the scope of the law.
Horne also pointed out the 2006 law does not apply to other forms of tobacco use, like chewing it.
The opinion disappointed Bill Pfeifer, president of the American Lung Association of the Southwest, whose organization championed the 2006 law. He said that, no matter how you look at it, the devices are designed to get people to inhale what he still calls a cigarette.
“If this looks like a duck, quacks like a duck, walks like a duck, then it's probably a tobacco product,” he said.
Pfeifer also pointed out that the manufacturers — most of them tobacco companies — have balked at having the devices considered “nicotine delivery systems” instead of cigarettes. That's because such a classification would allow them to be regulated by the U.S. Food and Drug Administration.
So from Pfeifer's perspective, if they're not drug-delivery devices, they have to be cigarettes.
But state Health Director Will Humble said the opinion comes as no real surprise. He echoed Horne's beliefs that the purpose of the law was not to keep people from harming themselves but to keep smokers from harming others.
“Getting the tobacco out of workplaces was enormous,” he said.
Humble also said there may actually be some public health benefit from Horne's opinion that the law does not apply to electronic cigarettes.
“If these things are effective in getting adults off of cigarettes, then they're a net benefit to public health, not a net nuisance,” he said.
Humble cited a study showing that people who used e-cigarettes to try to quit their tobacco habit were more likely to succeed than those who used over-the counter replacements like lozenges and gum, as well as those who tried to quit “cold turkey.”
He conceded, though, there are still questions, including whether some of these electronic cigarettes — particularly those with candy flavors — entice youngsters “who would not otherwise try cigarettes to try (these) and then get hooked on the nicotine and then switch to regular tobacco.”
That still leaves the issue of expanding existing law to cover e-cigarettes. Pfeifer said while he reads existing law to cover the devices, the best option would be to have having the Legislature amend the statute.
That may not be easy.
Lawmakers did vote in 2013 to expand the ban on providing tobacco products to minors to specifically include e-cigarettes. But the House Health Committee earlier this year killed a bid by Rep. Kelly Townsend, R-Mesa, to increase the penalty and to specifically allow business owners to prohibit the use of the devices on their premises by adults.
That still leaves local options.
Coconino County added e-cigarettes to its own smoking ban three years ago, but that ordinance applies only to unincorporated areas and Flagstaff council members have shown no inclination to opt in.
Cities elsewhere, like Tucson, have not sought their own bans. Officials at the University of Arizona and Arizona State University said their own smoking regulations make no reference to electronic cigarettes.
Horne said these entities remain free to go beyond what voters approved in 2006, and he said the fact such a ban would essentially protect people from themselves — versus shielding others from second-hand smoke — does not make such regulations an impermissible infringement on individual rights.
He compared it to the fact that the FDA prohibits people from taking certain drugs.
“You can't buy a drug unless it's proven to be safe and effective,” Horne said. “So it appears as though governments are given the ability to regulate things even though they can only harm the person who's making the decision, which is a very interesting philosophical question.”