Dianna M. Náñez

The Republic | azcentral.com

Tempe bans e-cigarette use in bars%2C restaurants and other enclosed public places

Opponents of the ban fear other Arizona cities will follow suit

The ordinance takes effect in 30 days

It's a battle playing out across the country: the concern for public health vs. freedom from government regulation.

In Arizona, the latest front is in Tempe, where the concern for public health won — at least for now.

This week, Tempe became the first Arizona city to ban the use of electronic cigarettes in public areas, joining a growing number of municipalities nationwide in the debate over the nicotine devices.

However, critics point out that there's no way to know whether the ordinance is warranted because the federal Food and Drug Administration has yet to decide how or whether to regulate e-cigarettes.

Nevertheless, the Tempe City Council voted 5-1 Thursday to approve the ordinance, which mirrors statewide regulation of tobacco cigarettes.

When the ordinance becomes effective in 30 days, electronic-cigarette users can no longer use the nicotine-delivery devices in Tempe restaurants, bars and other enclosed public settings. Tempe's ban does not restrict their use at e-cigarette retail locations or on businesses' outdoor patios.

The battery-powered devices, commonly referred to as "e-cigarettes" or "vaporizers," release vapor that contains nicotine and other chemicals at lower levels than tobacco cigarettes. Debate over the product centers on lack of conclusive medical research with regard to the health of users and those close to users.

Tempe joins Los Angeles, New York, Chicago and other U.S. cities that regulate the devices.

"Nationally, people are taking up the e-cigarette debate and how it should be treated," said Rene Guillen, legislative director of the League of Arizona Cities and Towns.

Guillen said he is not aware of any other cities in Arizona that have an e-cigarette ordinance.

Cities across the country are balancing pressure from the multibillion-dollar e-cigarette industry supported by local retailers against the concerns of health agencies and individuals who fear the devices are a threat to public health and will produce a new generation of smokers.

Business owners or patrons who want to stop someone from inhaling vapors in prohibited settings can call the Tempe Police Department, which will enforce the ban. The punishment is the same as for a tobacco violation, a civil penalty of $50 on the first offense and $75 fine for subsequent offenses.

The Tempe ban comes as FDA is considering adding e-cigarettes to federally regulated tobacco products, which include rolled cigarettes and smokeless tobacco.

The Tempe City Council took up the issue this spring amid growing concern over the effects of electronic cigarettes. Responding to opponents of the ban, who questioned why the council would not wait until the federal public comment period ended before acting on the ordinance, Councilwoman Robin Arredondo-Savage said Tempe is willing to reconsider its stance if new evidence calls for it.

In April, under the 2009 Family Smoking Prevention and Tobacco Control Act, the FDA opened a 75-day, public-comment period on provisions that would give the agency authority over cigars, electronic cigarettes, pipe tobacco, nicotine gels and waterpipe or hookah tobacco.

Public comment on the proposal was extended and closes next Friday. Lobbyists on both sides of the debate have monitored the process closely, looking for an edge in measures that could lead to changes in markets that have gone largely unregulated.

"This proposed rule is the latest step in our efforts to make the next generation tobacco-free," former Health and Human Services Secretary Kathleen Sebelius said in an April news release outlining the proposed regulation.

Among the requirements, the makers of the newly regulated products would have to include health warnings and report product ingredients. They could make claims of reduced health risk only if the FDA confirms that scientific evidence supports the claim and marketing the product benefits the public health.

The regulation aims to curb marketing to minors by banning sale of e-cigarettes and other newly regulated tobacco products to consumers age 17 and younger.

Last year, under pressure to shield children from unknown health risks, the Arizona Legislature banned the sale of electronic cigarettes to minors. Federal provisions would also ban free samples and vending-machine sales in facilities that allow minors.

The Valley's e-cigarette industry argued against the Tempe ban, saying people use e-cigarettes as a healthier alternative to tobacco. They say cities have no excuse for banning public use when there is no conclusive scientific evidence that e-cigarettes are harmful.

About 75 opponents of the ban, many of them Valley e-cigarette business owners, went to the council meeting. Those who spoke argued that the Tempe City Council should have allowed individuals the leeway to decide whether they want to regulate their private businesses.

"If you own a business or a restaurant and you don't like it (e-cigarette use), then ban it," said Matt Berger, who owns Butt Out e-cigarette sites in Tempe and across the Valley. "It shouldn't be up to the right of this council."

Opponents of the ban stayed after the council meeting on the steps in front of the chambers, vaping for at least a half-hour. Berger and other critics of the ordinance, standing amid a cloud of vapor, said they fear other Valley cities will follow Tempe's regulation.

Matt Morales of the Phoenix-based National Association of Vaping Businesses said Tempe jumped the gun on an issue that is far from being resolved. Tempe sided with studies that have yet to be proved rather than wait until the FDA rules on federal e-cigarette regulation, Morales said.

Natalie Higgins, who owns Valor Vapor in Tempe, said critics are turning a blind eye to the thousands of adults who gave up their cigarette habits for an e-cigarette option that they perceive to be healthier.

Proponents of the ban warned that e-cigarette companies will do just as tobacco companies did for decades: market to kids, fight regulation and risk Americans' long-term health.

E-cigarette retailers have come under fire for producing flavors like bubble gum and fruits that appeal to teens.

"The vapors from e-cigarettes contain known toxins," said Nicole Olmstead of the American Heart Association in Arizona. "However, they have not been subjected to thorough independent testing, so we can't be sure exactly what we're inhaling."