HOOKAH POLICY OVERVIEW: OPTIONS FOR LOCAL GOVERNMENTS WHO WE ARE

Law and Policy Partnership to End the Commercial Epidemic

The Law and Policy Partnership to End the Commercial Tobacco Epidemic (the Partnership) is a joint initiative of the American Lung Association and the Public Health Law Center to support professionals in their work to end the commercial tobacco epidemic in California.

The Partnership provides free technical assistance, research, training, and analysis to help communities pass strong local tobacco ordinances that are both effective and legally sound.

1/15/2021 2 THE PUBLIC HEALTH LAW CENTER

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1/15/2021 4 1/15/2021 5 Image credit: Sam Bradd https://drawingchange.com/gathering-wisdom-visuals-for-a-healthy-future/

1/15/2021 6 BACKGROUND: WHAT IS A HOOKAH?

• Also known as shisha, waterpipe, narghile, and other terms • Hookahs range in size from very small to multi-hosed and very large • Generally comprised of: – glass base filled with water – Loose-leaf tobacco wrapped in perforated aluminum foil and placed directly underneath lit charcoal – tray to catch coals – hose with a mouthpiece for

1/15/2021 7 BACKGROUND: HOOKAH AND FLAVORS

• Hookah tobacco, or shisha, traditionally comprised of honey, molasses, dried fruits, and tobacco • Today’s shisha comes in a vast array of flavors, including gummi bear, hipster mint, lemon muffin, peppermint shake, and mint chocolate

1/15/2021 8 FLAVORED HOOKAH ATTRACTS

1/15/2021 9 Credit: Truth Initiative 2018 FLAVORED HOOKAH ATTRACTS YOUTH

1/15/2021 10 Credit: Truth Initiative 2018 1/15/2021 11 MYTH: HOOKAH IS SAFER THAN

• Recent 2020 study showed that among 18-24 year-olds, hookah was perceived as a less toxic form of tobacco consumption • 2011 study of high school students in San Diego found that 46.3 percent of students thought hookah was safer or less addictive than cigarettes • Perception that the water “filters” the toxins in the smoke, making it healthier than cigarettes

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Image credit: Hookah smoking (Source: Pixabay) https://www.verywellmind.com/am-i-too-old-to-quit-smoking-2825355 TRUTH: HOOKAH CAN BE WORSE THAN CIGARETTES

• One hookah smoking session can equal up to smoking 100 cigarettes (or 5 packs) • Hookah smoker exposed to 150 times more smoke than the average cigarette smoker and 1.7 times the • Hookah smoke exposes user to 8.4 times the carbon monoxide, along with heavy metals, carcinogens, and volatile organic compounds from the burning coals • Hookah smoker exposed to 36 times the tar of a cigarette

1/15/2021 13 TRUTH: HOOKAH HAS SIGNIFICANT HEALTH IMPACTS

• Other long and short-term health impacts include: • Lung disease/respiratory illness • Oral, lung, bladder, gastric, and other cancers • Cardiovascular disease • Infectious disease (including COVID-19 and other viruses) • Nicotine addiction • Secondhand smoke exposure • Carbon monoxide poisoning

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Photo Credit: https://www.medicalnewstoday.com/articles/322982 MYTH: HOOKAH LOUNGES CATER TO AN ETHNIC MINORITY

• Many of the arguments raised by the hookah industry argue that hookah is a “cultural” practice unique to Middle-Eastern, Egyptian, Indian, and other cultures and should be respected and treated differently • Hookah bars often have exotic names and décor • Implication that failure to exempt hookah from flavor bans targets an ethnic minority

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Photo Credit: Las Vegas Sun TRUTH: HOOKAH LOUNGES CATER TO YOUNG PEOPLE

• Nearly 1 in every 13 (7.8%) high school students in the U.S. had used hookah during the previous year according to 2019 NYTS data • A 2017 study published in the New England J. of Medicine found that 13% of 15–17-year-olds and 44.4% of 18–24-year-olds had ever used hookah/waterpipe tobacco • In California, 9.2 % of high school students reported ever using hookah • 30.8% of e-cigarette retailers near CA college campuses (1-4 miles) sold hookah

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Photo Credit: Stanford University TRUTH: HOOKAH LOUNGES STEREOTYPE AND SEXUALIZE MIDDLE EASTERN CULTURE

• Hookah lounges often rely on overblown stereotypes of “middle eastern” or “exotic” cultures • Hookah lounges often use overtly sexualized images in their advertisements

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Photo Credits: Stanford University TRUTH: HOOKAH TARGETS SAME COMMUNITIES AS OTHER COMMERCIAL TOBACCO

• 2019 NYTS data shows that high school students who identify as either “Hispanic” or “Black, non-Hispanic” currently use hookah at rates of 6.4 percent and 4 percent, while high school students identify as “White, non-Hispanic” currently use hookah at a rate of 2.5 percent • California study found that those identifying as Latinx comprised 40 percent of the population that use hookah • NATS found higher prevalence of hookah use among Black Latinx community compared to non-Hispanic white counterparts

1/15/2021 18 Source: Lincoln Mondy, Black Lives, Black Lungs (2017) TRUTH: HOOKAH IS PROHIBITED IN PARTS OF AND

• Hookah is prohibited in public places, including restaurants and cafes in , three Indian states, and two Saudi Arabian cities • In order to limit spread of COVID-19, , UAE, , and have all banned hookah use, as well as Indian state of Delhi

1/15/2021 19 MYTH: HOOKAH IS ONLY USED BY RESPONSIBLE ADULTS

- Hookahs are 3 feet tall and cannot be easily concealed in your pocket or backpack like vape. - Hookahs take 25 – 30 minutes to set up and need hot coals, therefore it cannot be smoked during recess in the bathroom at school. - Hookah’s cost over $200 for all the parts and accessories, making it out of reach for most kids. - Hookahs are not being confiscated in schools

1/15/2021 20 Photo Credit: Fumari 2020 TRUTH: KIDS USE HOOKAH & INDUSTRY TARGETS KIDS

1/15/2021 21 MYTH: ALL SHISHA IS FLAVORED

• A flavor ban is a de facto shisha ban

1/15/2021 22 TRUTH: SOME SHISHA IS “UNFLAVORED”

• While not popular within the nightclub crowd, “traditional” hookah has tobacco and molasses (or honeyed = mu’assel)

1/15/2021 23 TRUTH: SOME SHISHA IS “UNFLAVORED”

1/15/2021 24 Credit: Truth Initiative 2018 MYTH: HERBAL SHISHA IS MUCH SAFER THAN SHISHA THAT CONTAINS TOBACCO

1/15/2021 25 Photo credit: https://pipesarsenal.com/fantasia-herbal-shisha- 50g-10pk-apple-z407apl/ TRUTH: EVEN HERBAL SHISHA IMPACTS HEALTH

• There is great variability in the composition of herbal shisha which can contain even more toxic trace metals and carcinogens than found in cigarettes • The mainstream and sidestream smoke from the burning of herbal shisha contains carcinogens equivalent to or greater than that of tobacco containing products

1/15/2021 26 TRUTH: EVEN HERBAL SHISHA IMPACTS HEALTH

• One study found that among lounges that claimed to only use herbal shisha, nicotine was still detectable in the air • In cafes or lounges where herbal shisha is smoked, air quality is potentially hazardous as it may contain significant amounts of fine particulate matter • When heated, the flavor additives in shisha can result in a higher concentration of harmful chemicals in smoke than unflavored shisha

1/15/2021 27 Credit: Johns Hopkins University MYTH: HOOKAH USE DOESN’T LEAD TO OTHER TOBACCO PRODUCT USE

1/15/2021 28 TRUTH: HOOKAH USE CAN LEAD TO CIGARETTE USE

• 2014 Dartmouth study and 2015 study published in JAMA Pediatrics found that young people who use hookah are twice as likely to pick up a cigarette habit than those who don’t

1/15/2021 29 TRUTH: HOOKAH USE IS CORRELATED WITH OTHER SUBSTANCE USE

1/15/2021 30 WHY A FLAVOR BAN?

• It works! • New York City – Youth had 37% lower odds of ever trying products – 28% lower odds of ever using any type of tobacco • Providence, Rhode Island – Use of any tobacco product for high schoolers dropped from 22% to 12% – E-cigarette use declined from 13.3% to 6.6%

1/15/2021 31 SB-793

• Bans sale of flavored tobacco products • Covers “tobacco retailers,” their agents and employees

– Selling tobacco products from a “retail location” or vending machine • “Characterizing flavor” includes mint and menthol!

– Hard fought win for public health and equity

1/15/2021 32 SB-793 HOOKAH EXEMPTION

• Exemption added in Senate • Hookah and shisha exempt if: – Licensed to sell tobacco products – No one under 21 allowed – Comply with rules for tobacco retailer • Bill still covers e-hookahs

1/15/2021 33 • Under stipulation, law did not take effect on Jan 1 pending outcome of signature verification

1/15/2021 34 NO PREEMPTION!

• Explicitly does not preempt local action going beyond state law – Sets a minimum standard

• Local governments can pass laws that close the loopholes in the state bill

1/15/2021 35 CHALLENGES: ENFORCEMENT

• Many hookah lounges advertise themselves as hookah-cafés and serve food and alcohol

1/15/2021 36 CHALLENGES: ENFORCEMENT

• Hookah lounges operating after bars close as after-hours clubs already attract increased law enforcement presence

1/15/2021 37 CA STATE WORKPLACE LAW

• Exceptions to smoke-free workplace law – “Private smoker’s lounge” = dedicated to the use of tobacco products – “Retail tobacco shops” = main purpose is selling tobacco products • CA AG Opinion • CA DPH Guidance – no food/ beverages • But enforcement may be challenging – Courts not bound by these opinions

1/15/2021 38 OUR MODEL ORDINANCE

Best Practices  Jurisdiction-wide ban  Menthol flavors prohibited  All tobacco products  No retailer exemptions – hookah or tobacco bars – retail tobacco stores – adult-only shops

1/15/2021 39 HOOKAH OPTIONS FLAVOR BAN

• Ban all flavors for all products, including hookah • Many have comprehensive flavor bans (all products, all flavors, all places), including:

• Alameda • Marin Cty • Berkeley • Oxnard • Carson • Palo Alto • Contra Costa Cty • Sacramento • Cupertino • San Francisco • Davis • Santa Cruz Cty • Delano • Santa Maria • Fremont • Watsonville • Los Angeles Cty • Yolo Cty • Livermore

1/15/2021 40 HOOKAH OPTIONS COVER ALL SALES

• SB793’s coverage of online sales is unclear: – “retail location” as “a building from which tobacco products are sold at retail.” • Also, shisha and hookah paraphernalia can currently be sold online without ID • Options: – Cover all online sales, like San Francisco – Enforce minimum 21 age verification to ensure no illegal underage sales • Chicago and New York take this approach

1/15/2021 41 HOOKAH OPTIONS AGE REQUIREMENTS

• Can mirror the SB793 requirements and restrict entry into hookah bars and smokers’ lounges for anyone under 21

• California does not have a minimum age of sale for non-nicotine, herbal shisha – Can extend a minimum 21 legal sales age for these products – Still contains carbon monoxide and other toxins that cause cancer

1/15/2021 42 HOOKAH OPTIONS MASSACHUSETTS APPROACH

• Require only incidental sales of food or alcohol: – “an establishment that: (i) exclusively occupies an enclosed indoor space and is primarily engaged in the retail sale of tobacco products as defined in section 6 for consumption by customers on the premises; (ii) derives revenue from the sale of food, alcohol or other beverages that is incidental to the sale of a tobacco product and prohibits entry to a person under 21 years of age; (iii) prohibits a food or beverage not sold directly by the establishment from being consumed on the premises; (iv) maintains a valid permit for the retail sale of a tobacco product” (Mass. Gen. Laws c.270 § 22(a))

1/15/2021 43 HOOKAH OPTIONS CHICAGO APPROACH

• Exclude businesses with food or liquor licenses: – “‘Retail tobacco store’ means a retail establishment that derives more than 80% of its gross revenue from the sale of loose tobacco, cigarettes, cigarillos, , pipes, other smoking devices and accessories, hookahs and related products, and/or electronic cigarettes and related products, and in which the sale of other products is merely incidental. ‘Retail tobacco store’ does not include a tobacco department or section of a larger commercial establishment or any establishment with any type of liquor, food, or restaurant license.” Chicago, Ill., Code § 7-32-010 (2019).

1/15/2021 44 HOOKAH OPTIONS OAKLAND APPROACH

• Prohibit food sales outright: – “This section does not apply to the sale or offer for sale of Flavored Tobacco Products by a ‘Tobacco Store.’” “Tobacco Store” is a retail business that primarily sells tobacco products; generates more than 60 percent of its gross revenues annually from the sale of tobacco products and tobacco paraphernalia; does not permit any person under 18 years of age to be present or enter the premises at any time, unless accompanied by the person’s parent or legal guardian; and does not sell alcoholic beverages or food for consumption on the premises.” Oakland, Cal., Code 5.91 (2019). • Palo Alto, CA also takes a similar approach with its exemption

1/15/2021 45 LITIGATION RISK

Neighborhood Market Assn. v. San Diego Cty. • San Diego Cty’s ban has a hookah exemption • NMA calls it an “arbitrary exception” • Argues it creates a “tobacco product standard” – Points to San Diego definition of shisha, which lists “molasses, honey, fruit pulp, or dried fruits” as traditional ingredients • Claim may not succeed, but shows litigation risk

1/15/2021 46 LOCAL ORDINANCE TIPS

• Stress public health message – There is no safe form of tobacco – All flavored products make it easier to start, harder to quit, attract youth

• Exemptions entrench inequities

• Local action can help build support for state referendum

1/15/2021 47 KNOW YOUR RESOURCES

1/15/2021 48 CONTACT US

651.290.7506 [email protected] www.publichealthlawcenter.org/caltobacco @phealthlawctr facebook.com/publichealthlawcenter

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