Confronting the Emerging Threat of Hookah Bars

1. Confronting the Emerging Threat of Hookah Bars Baltimore County Tobacco Free Coalition Nov. 20, 2013

2. Overview • What is hookah? • How hookah works • Negative health effects • Growing use and availability • What is the status of hookah bars under current law? • Clean Indoor Air Act • Primary Activity Exemption • How can hookah be further regulated? • Restricting CIA exemptions • Signage • Sanitation • Enforcement

3. What is hookah? • A hookah is a single or a multi-stemmed instrument used to smoke tobacco, typically in a communal setting. • Design and size vary, but generally consist of: • a bowl where tobacco is heated with charcoal; • a body whose chamber holds water; • a flexible hose leading from the body; and • a mouthpiece through which smoke is drawn from the chamber. • As a user inhales, air is pulled through the bowl of tobacco and charcoal, drawing smoke through the water and the hose to the user.

4. What is hookah? • Shisha is the moist, sticky tobacco smoked in hookah; it is often soaked in honey, fruit, or other flavor components. • Available flavors include apple, banana, cappuccino, lemon, orange, papaya, piña colada, raspberry, rose, and strawberry. • One bowl of shisha can last up to 45 minutes, and including rental of the hookah can cost around $10 per use.

5. Is hookah harmful? • Smoke inhaled in an average hookah smoking session of 45 minutes is about 150 times that of one cigarette. • Even after passing through water, hookah smoke contains high levels of carcinogens and heavy metals. • Hookah use is significantly associated with lung cancer, respiratory illness, low birth-weight, and periodontal disease. • Shared mouthpieces increase risks of spreading communicable diseases like tuberculosis, hepatitis, and herpes, and more common viruses like the flu.

6. Is hookah use growing? Hookah Establishments in Maryland, 2007 = Public four-year universities = hookah establishments

7. Is hookah use growing? Hookah Establishments in Maryland, 2013 = Public four-year universities = hookah establishments

8. Is hookah use growing? • Hookah use among high school students in the U.S. rose from 4.1 percent to 5.4 percent between 2011 and 2012. • In the last seven years, the number of hookah bars in MD has risen 383 percent from 6 to at least 30 locations. • Excluding seasonal locations, the average distance is only 2.47 miles from a hookah bar to a college or university.

9. Existing Hookah Law: Clean Indoor Air Act • Smoking hookah indoors falls under Maryland’s Clean Indoor Air Act (“CIA”) • CIA prohibits smoking and secondhand smoking in public indoor areas in order to “preserve and improve the health, comfort, and environment of the people of Maryland by limiting exposure to environmental tobacco smoke.” • CIA specifically prohibits smoking in: • public meeting places; • public transportation vehicles; • private homes used to provide health or daycare services; • indoor places of employment; and • establishments licensed or permitted under Maryland law to sell or possess alcohol.

10. Existing Hookah Law: CIA’s Tobacco Retailer Exemption • CIA exempts certain places from its ban on smoking indoors: homes, automobiles, portions of hotels and motels, and tobacco retail businesses • To be considered an exempt tobacco retail business: • the primary activity of the business must be the retail sale of tobacco-containing products and accessories; and • the sale of other products must be incidental. • The Attorney General’s office has interpreted this to mean the sale of tobacco products and accessories must comprise “nearly all” of an establishment’s revenue in order to meet the standards for exclusion. • Hookah bars claim to operate under this interpretation of the tobacco retail business exemption

11. Future Regulatory Options for Hookah:Local Authority to Regulate • CIA expressly allows county and municipal governments to “enact and enforce more stringent measures to protect the public from involuntary exposure to environmental tobacco.” • Legislative power to “prevent the introduction of contagious diseases into such county” and regulate “any and all places … which may involve or give rise to unsanitary conditions or conditions detrimental to health.” • Board of Health (“BOH”) has power to adopt rules and regulations on “any nuisance or cause of disease.”

12. Future Regulatory Options for Hookah:Restricting Tobacco Retailer Exemption • Through legislative action or BOH interpretation, could: • Specifically exclude establishments that serve food and drink from the CIA primary activity exemption • Require employees and customers of establishments that meet the exemption to be 18 and over

13. Future Regulatory Options for Hookah:Signage Requirements • Through legislative authority or BOH, could: • Require signage to warn potential patrons that smoking is occurring inside • Easily accomplished by extending state law requirement for hotel and motel rooms exempt from the CIA to post signs prominently saying “Smoking Permitted in this Room” • Require posting of prominent signs at establishments to warn potential hookah users of the harmful effects of hookah use • no federal preemption of warning labels for hookah; the Federal Cigarette Labeling and Advertising Act only preempts labeling for cigarettes and smokeless tobacco

14. Future Regulatory Options for Hookah:Sanitation Requirements • Through legislative authority or BOH, could regulate: • use of disposable rubber mouthpieces • the frequency with which water in the hookah vase is changed • cleaning procedures for the stem and hose • methods and frequency for changing the mouthpiece attached to the end of the hose, • recordkeeping for the above $10 per 100, http://www.hookah-shisha.com/store/pc/catalog/Hookah-Hose-Mouthtips-L.jpg?pIdProduct=2048

15. Future Regulatory Options for Hookah:Enforcement of CIA • Local health departments have authority to investigate and address complaints of CIA violations • Future local regulation could specify enforcement scheme • Owners are also required to correct the violations that are found, and send a letter to the local health department certifying that corrections were made. • Violations of the CIA are punishable by fines ranging from $100 for a second violation to $1000 for fourth or subsequent violations. • Baltimore County may raise these fines • Graduated system makes routine enforcement important

16. Future Regulatory Options for Hookah:Additional Considerations • Zoning restrictions • Conditional use permitting in order to specifically consider proximity to residential areas and colleges • County licensing of BYOB: • May be difficult to overcome preemption per Montgomery County v. Board of Supervisors, 53 Md. App. 123 (1982) • No power to limit distance to churches or schools Federico v. Bratten, 181 Md. 507 (1943).

17. Questions? Brett A. Baulsir, J.D. Fellow, Legal Resource Center for Public Health Policy University of Maryland Carey School of Law 500 W. Baltimore Street Baltimore, MD 21201 (410) 706-2608 bbaulsir@law.umaryland.edu