Transit-rail agencies adapt smoking policies to cover e-cigarettes

By Julie Sneider, associate editor

Although the Federal Food and Drug Administration (FDA) has yet to control the use and sale of electronic cigarettes, a growing number of transit agencies are getting ahead of the regulatory curve by adopting policies that treat the devices the same as mainstream tobacco products.

Their conclusion: Where there's no smoking, there's no "vaping" allowed.

Amtrak rolled e-cigarettes into its smoking policy in 2008, not long after the battery-powered, vapor-emitting devices started showing up in the U.S. marketplace. But with sales — reported to be $2 billion in 2013 — now taking off and product advertising spreading across the country, more transit agencies are considering restrictions on e-cigarette use.

Transit agency officials say they're clarifying their rules at the request of passengers, staff and law enforcement. Among the most recent policy adjusters is Los Angeles County Metropolitan Transportation Authority. Last month, LACMTA amended its Customer Code of Conduct by adding "vaping" to the list of prohibited behaviors.

E-cigarettes work by heating up a nicotine-laced, flavored liquid that can be inhaled and exhaled, producing a vapor cloud that resembles smoke. Product advocates say that because the vapors do not contain cancer-causing chemicals, e-cigarettes are safe and should not be regulated the way actual cigarettes are. They also say the products can help tobacco smokers kick the habit.

However, the jury is still out on the public health impact of e-cigarettes, according to the American Cancer Society.

"Studies have shown that e-cigarettes can cause short-term lung changes that are much like those caused by regular cigarettes"” the society states on its website. "But long-term health effects are still unclear. This is an active area of research, but the safety of these products is currently unknown."

The increasing popularity of the product combined with the little-known health effects make the regulatory aspect a political hot potato for public and private sector decision-makers.

LACMTA's board took on the issue in response to questions from staff and the public, said spokeswoman Kimberly Upton. Now, the agency's policy prohibits smoking, vaping or carrying a lit cigar, pipe or cigarette of any kind on Metro vehicles or in facilities, except in designated areas. Smoking or vaping also is not allowed within 20 feet of any Metro facility entrance, exit or window.

"Our research indicates that municipalities locally and across the nation are all restricting e-cigarettes in a manner consistent with other smoking activities," Upton said, noting that the L.A. City Council addressed the topic a few weeks before LACMTA did. Effective April 1, Los Angeles restricted the use of e-cigarettes in restaurants, bars, nightclubs and other public places.

Last month, Virginia Railway Express (VRE) also announced that e-cigarettes would be restricted on VRE property. While smoking isn't allowed on trains, it is allowed on the 100 northern-most feet of the platform. VRE clarified the policy following a recent "Train Talk" event held between VRE management and passengers.

"The question was raised by our riders, so that was the impetus for including e-cigarettes in the existing smoking policy," said Bryan Jungwirth, VRE's director of public affairs and government relations.

Dallas Area Rapid Transit officials, too, determined their existing smoking policy should include e-cigarettes after the agency's legal counsel and police researched the matter. The policy prohibits smoking and chewing tobacco on DART vehicles or property, including train platforms, transit centers and bus stops.

"A deciding factor for DART was a U.S. Appeals Court ruling in 2010 [that] determined e-cigarettes were to be regulated as tobacco products," explained Travis Hudson in a blog posted in January on DART's website.

Other agencies that have adopted e-cigarette restrictions include Caltrain, Chicago Transit Authority, Metropolitan Atlanta Rapid Transit Authority, Metro Transit, MTA Long Island Rail Road, MTA Metro-North Railroad and Tri-County Metropolitan Transportation District of Oregon. And more are likely to take action, as municipalities and state legislatures attempt to tackle the issue, and as research into the health consequences of vaping unfolds.

Meanwhile, some members of Congress are leaning on the FDA to assert its authority in setting marketing and product regulations, particularly when it comes to advertising and selling e-cigarettes to children. The agency first said it would recommend restrictions in 2011, but hasn’t yet. An FDA official said earlier this year that the agency expected to issue some regulations soon.

[Editor's update: On April 24, the FDA proposed extending its tobacco authority to cover additional products, including e-cigarettes. To read more about the FDA's proposed rules, follow this link.]