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Is Your Tobacco Policy Legally Compliant?

By Net Assets posted 27 days ago

  
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Risk Management |

Several states have gone beyond federal laws that prohibit smoking, to include bans on vaping. Many now apply to independent school buildings and grounds.

Edited from a piece that originally appeared as a Schwartz Hannum PC E-Alert.

By Gary D. Finley, Schwartz Hannum PC

As vaping on campus has become more prevalent, federal and state lawmakers have expanded laws regulating tobacco use by minors. Massachusetts recently joined several other states by enacting a strict anti-smoking law that applies to all schools, including independent schools.

Overview of Laws Governing Tobacco in Schools

The federal Pro-Children Act, which does not apply to most independent schools, prohibits smoking in facilities where federally funded children's services are provided, including most public K-12 schools. In December of 2018, U.S. Senators Tom Udall and Orrin Hatch introduced bipartisan legislation that would broaden the scope of the Pro-Children Act to encompass e-cigarettes and vaping.

States and municipalities have been even more active in revising anti-smoking laws, expanding not only the types of products that are prohibited (e.g., vaping), but also where such laws apply. Frequently, lawmakers have extended such laws to encompass all schools, including independent schools. Today, Colorado, New Jersey and New York, among other states, have anti-smoking statutes that apply to independent schools. Houston, Texas, and Birmingham, Alabama, are among the cities with ordinances specifically prohibiting smoking in independent schools.

New York's Public Health Law, for example, is significantly broader than the federal law, prohibiting all smoking and vaping, and also extending the ban to all buildings and grounds of all schools, including independent schools. The New York law provides an exception for smoking or vaping "in a residence" (i.e., faculty housing).

Each school should be aware of the specific laws that apply in its locality. To the extent that a law specifically extends to independent schools, the school should verify that its policy is compliant (e.g., confirm that the policy includes the requisite definition of "tobacco products").

New Massachusetts Law

The Massachusetts law, passed in July 2018, raised the legal age to buy tobacco and certain "tobacco products,” including cigarettes and e-cigarettes, to 21. It also prohibits all children and adults from using tobacco products on school grounds and defines “tobacco product” broadly, as any product containing, made or derived from nicotine and designed to be consumed by smoking, chewing or "any other means.” The law further mandates that the school committee or board of trustees establish a policy regarding violations of the tobacco prohibition.

Recommendations

In light of these evolving laws, independent schools should review their current policies governing the use and possession of tobacco products by students, employees and guests on campus, to ensure that school policy is consistent with applicable law and developing best practices.

Because most applicable laws do not require that schools adopt any specific policy language, independent schools are generally free to fashion policies that are consistent with their culture, as long as those policies meet the minimum requirements of all applicable laws.

Important elements of an anti-tobacco policy typically include: (1) the school's rationale for its anti-tobacco policy; (2) a clear definition of the prohibited conduct; (3) a description of the school's anti-tobacco education programming and support services (if any); and (4) an indication of how the policy will be enforced and what penalties will be considered for violations.

In direct response to these new mandates, schools should consider the following:

  • Anti-smoking policies should be broad enough to prohibit - at a minimum - all of the activities proscribed by all applicable federal, state and local laws. This might mean any or all of the following:
    • Revising the definition of tobacco products.
    • Broadening the scope of the activities to which the policies apply.
    • Ensuring that school policies cover all individuals: students, employees, visitors, etc.
  • The anti-smoking policy should address how the school handles policy violations. Different standards will likely apply to different classes of individuals (i.e., students, faculty/staff, parents, other visitors).

Because independent schools approach anti-tobacco education and enforcement differently, there is no one model policy that will be right for every school.

This information is provided for general educational purposes only. Readers are encouraged to work with their legal counsel when addressing specific issues.
Gary D. Finley is an attorney at Schwartz Hannum PC. Contact him at gfinley@shpclaw.com.

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