Confronting the Emerging Threat of Hookah BarsBaltimore County Tobacco Free CoalitionNov. 20, 2013

OverviewWhat is hookah?How hookah worksNegative health effectsGrowing use and availabilityWhat is the status of hookah bars under current law?Clean Indoor Air ActPrimary Activity Exemption How can hookah be further regulated?Restricting CIA exemptionsSignageSanitationEnforcement

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.

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, pia 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.

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.

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

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

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.

Existing Hookah Law: Clean Indoor Air ActSmoking hookah indoors falls under Marylands 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; andestablishments licensed or permitted under Maryland law to sell or possess alcohol.

Existing Hookah Law: CIAs Tobacco Retailer ExemptionCIA exempts certain places from its ban on smoking indoors: homes, automobiles, portions of hotels and motels, and tobacco retail businessesTo be considered an exempt tobacco retail business: the primary activity of the business must be the retail sale of tobacco-containing products and accessories; andthe sale of other products must be incidental.The Attorney Generals office has interpreted this to mean the sale of tobacco products and accessories must comprise nearly all of an establishments revenue in order to meet the standards for exclusion.Hookah bars claim to operate under this interpretation of the tobacco retail business exemption

Future Regulatory Options for Hookah:Local Authority to RegulateCIA 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.

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 exemptionRequire employees and customers of establishments that meet the exemption to be 18 and over

Future Regulatory Options for Hookah:Signage RequirementsThrough legislative authority or BOH, could:Require signage to warn potential patrons that smoking is occurring insideEasily accomplished by extending state law requirement for hotel and motel rooms exempt from the CIA to post signs prominently saying Smoking Permitted in this RoomRequire posting of prominent signs at establishments to warn potential hookah users of the harmful effects of hookah useno federal preemption of warning labels for hookah; the Federal Cigarette Labeling and Advertising Act only preempts labeling for cigarettes and smokeless tobacco

Future Regulatory Options for Hookah:Sanitation RequirementsThrough legislative authority or BOH, could regulate:use of disposable rubber mouthpiecesthe frequency with which water in the hookah vase is changedcleaning procedures for the stem and hosemethods 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

Future Regulatory Options for Hookah:Enforcement of CIALocal health departments have authority to investigate and address complaints of CIA violationsFuture 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 finesGraduated system makes routine enforcement important

Future Regulatory Options for Hookah:Additional ConsiderationsZoning restrictionsConditional use permitting in order to specifically consider proximity to residential areas and collegesCounty 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).

Questions?Brett A. Baulsir, J.D. Fellow, Legal Resource Center for Public Health PolicyUniversity of Maryland Carey School of Law500 W. Baltimore StreetBaltimore, MD 21201(410) 706-2608bbaulsir@law.umaryland.edu

U.S. Dept. of Health and Human Serv., Centers for Disease Control and Prevention, Smoking and Tobacco use: Hookahs (June 14, 2013), http://www.cdc.gov/tobacco/data_statistics/fact_sheets/tobacco_industry/hookahs/ [accessed Oct. 24, 2013].Tobacco Free U / The Bacchus Network. Reducing Hookah Use, A Public Health Challenge For the 21st Century, http://www.tobaccofreeu.org/pdf/HookahWhitePaper.pdf (last accessed Aug. 26, 2013). Id.Hookah Connection, Tobacco Menu, http://www.hookah-connection.com/hookah-menu.aspx (last accessed August 26, 2013).

*Tobacco Free U / The Bacchus Network. Reducing Hookah Use, A Public Health Challenge For the 21st Century, http://www.tobaccofreeu.org/pdf/HookahWhitePaper.pdf (last accessed Aug. 26, 2013). Hookah Connection, Tobacco Menu, http://www.hookah-connection.com/hookah-menu.aspx (last accessed August 26, 2013). Hookah & Shisha Central, Hookah Tobacco and Shisha Tobacco, http://www.hookah-shisha.com/ [accessed Oct. 24, 2013].

*Elie Akl, et al, The Effects of Waterpipe Tobacco Smoking on Health Outcomes: A Systematic Review, 39 Intl. J. of Epidemiology 834 (Jan. 5, 2010), http://ije.oxfordjournals.org/content/39/3/834.longCaroline Cobb, et al., Waterpipe Tobacco Smoking: An Emerging Health Crisis in the United States, 34 Am. J. of Health Behavior 275 (Nov. 14, 2011), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3215592/

*Stars are public four year universities in Maryland: Bowie State, Coppin State, Frostburg State, Morgan State, Salisbury University, St. Marys College of Maryland, Towson University, University of Baltimore, UMD, Baltimore, UMBC, UMCP, UMES, and UMUCPins are known, operating hookah bars*Stars are public four year universities in Maryland: Bowie State, Coppin State, Frostburg State, Morgan State, Salisbury University, St. Marys College of Maryland, Towson University, University of Baltimore, UMD, Baltimore, UMBC, UMCP, UMES, and UMUCPins are known, operating hookah bars*-Denver Nicks, Candy Flavored Tobacco Products on the Rise, Time Healthland.com (Nov. 14, 2013), http://healthland.time.com/2013/11/14/candy-flavored-tobacco-products-on-the-rise/-Capital News Service, Health Officials Say Smoking Hookah Could be a Health Hazard (Feb. 23, 2012), http://cnsmaryland.org/2012/02/23/health-officials-say-smoking-hookah-could-be-a-health-hazard/ *Id.Id; Md. Code Ann., Health-Gen. 24-510 (West)S.B. 91, 2007 Leg., 423rd Sess. (Md. 2007). Prior to the CIAs passage, five Maryland counties (Charles, Howard, Montgomery, Prince Georges, and Talbot) and Baltimore City passed smoking bans. Md. Dep't of Legis. Serv., Fiscal and Policy Note on SB 91, 2007 Leg., 423rd Sess. (Md. 2007), available at http://mlis.state.md.us/2007RS/fnotes/bil_0001/sb0091.pdf.-language about prohibiting smoking in establishments licensed to sell alcohol should not pose a problem because the clause specifically says under Maryland law, and would not include establishments under a county licensing scheme*-COMAR 10.19.04.03-Md. Dept of Health and Mental Hygiene, Clean Indoor Air Act General Information (2010), http://phpa.dhmh.maryland.gov/OEHFP/EH/SitePages/ciaa_faq.aspx-MD Attorney General Opinion Letter from Sandra Benson Brantley, Mar. 27, 2007: Although [the Clean Indoor Air Act] does not define primary activity, in my opinion, a hookah lounge that generates nearly all of its revenue from the sale of tobacco or sisha that is to be smoked, as well as payment for use of the hookah itself, would meet the exemption.*Md. Code Ann., Health-Gen. 24-510 (West); see COMAR 10.19.04.01*Should you choose to bar minors from these establishments, could also require signage to that effect*http://www.hookah-shisha.com/store/pc/catalog/Hookah-Hose-Mouthtips-L.jpg?pIdProduct=2048*COMAR 10.19.04.08*