Since May 2016, when it had issued the final deeming rule, the Food and Drug Administration (FDA) is exercising an extended regulatory power over all tobacco products including electronic nicotine delivery systems, cigars, hookah (water pipe) tobacco, pipe tobacco, etc. By subjecting hookah (also called shisha or waterpipe) tobacco under the Federal Food, Drug and Cosmetic Act (FDCA), the deeming rule enabled FDA to regulate the manufacture, import, packaging, labeling, sale, advertising, promotion and distribution of hookah tobacco in the United States. Accordingly, regulations applying to tobacco products under the FDCA apply to hookah tobacco and hookah sellers are required by law to comply with all applicable Federal laws and regulations for retailers.
Specifically, as of August 8, 2016, hookah tobacco sellers were bound to:
Besides, beginning August 10, 2018, retailers were required not to sell or distribute hookah or pipe tobacco without a health warning statement displayed on the package and not to display advertisements for a hookah or pipe tobacco without a health warning statement.
Much has been said on the negative health effects of hookah consumption, and nationwide consumption is believed to be widespread among the youth in the US. I recently learned that it’s not always water that goes in the hookah tobacco pipe and that sometimes, low-quality alcohol is mixed and inhaled together with the Nicotine, the toxic chemicals and carcinogens found in hookah tobacco. I witnessed how they are made readily accessible to youngsters in hookah bars and lounges that also serve food and alcohol in the DMV area. Thinking about the cultural reasons that once justified the legalization of hookah consumption in the US, I noticed that none of the hookah bar/lounge owners I’ve seen had a middle-eastern communal background or a significant cultural attachment to hookah use. Thus, although I consider the inclusion of waterpipe tobacco under the law as a success, I believe unacceptable enforcement gaps would justify stronger actions for the reduction of youth exposure and consumption of hookah tobacco.
Another legal issue with hookah tobacco consumption is whether States’ Clean Indoor Air laws incorporate it under provisions restricting or banning smoking in public places. While some states included hookah smoke under the definition of ‘smoking’, and applied the ban, others have rooms for exempting hookah lounges or bars. Maryland’s Clean Indoor Air Act requires any tobacco retailer, including hookah tobacco bar or lounge to meet two requirements to be exempted from the ban on smoking; a showing that its primary business is the sale of tobacco products and accessories, and its sale of other products is incidental. Still, bars in Maryland sell hookah with food and drinks, and they do not strictly check age when they check IDs.
Similarly, Virginia’s ban on smoking applies in principle to hookah lounges and bars if they serve food. However, there are lounges in Virginia where people can be served with food, drinks, and hookah at the same time, and to make it worse, those establishments do not comply with the age limits for hookah tobacco consumption.
Therefore, I say Stricter enforcement of existing Federal and State tobacco control laws, assessment of how fast hookah tobacco sale is growing as a business (with the youth as its major consumer), and utilization of studies on the negative health outcomes of hookah tobacco are some of the activities awaiting the FDA and State Health Departments.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.