News and Events

Ordinance to Regulate Electronic Cigarettes Passed by
Indian River County Board of County Commissioners

October 22 , 2013

On October 22, 2013, the Indian River County Board of County Commissioners unanimously passed an ordinance creating rules on the marketing and sale of electronic cigarettes (e-cigarettes) that are comparable to the rules in place for other tobacco products.

The Indian River Ordinance restricts the sale of electronic nicotine delivery devices to those 18 years of age and older. The Ordinance also restricts the marketing and sale of these products in the same manner as traditional tobacco products, which includes placing the products behind the counter in retail outlets.

Indian River County Commission

Indian River County is just the second Florida county to address the issue of youth access to electronic nicotine delivery devices such as electronic cigarettes. The Ordinance fills a current gap in the regulation of this new class of drug delivery device.

In 2009, the electronic cigarette industry sued the FDA in Federal Court to limit the regulation of these drug delivery devices by treating them as tobacco products (Sottera, Inc. v. FDA, No. 10-5032). The judge in the case agreed, granting the Food and Drug Administration (FDA) the right to regulate e-cigarettes only as tobacco products under the Family Smoking Prevention and Tobacco Control Act, unless electronic cigarette manufacturers make false health claims in the marketing of those products.

In April 2011, the FDA stated their intention to regulate e-cigarettes as it does other tobacco products. Since that time, the FDA has been taking public comments on the proposed regulations, but the organization has not issued any specific guidelines for states and local communities.

However, the Tobacco Control Act allows state and local governments to regulate the time, place, and manner of tobacco sales and marketing.  In the absence of FDA regulatory guidance, individual states, counties, and municipalities have started to address the issue.

In Florida, the Department of Business and Professional Regulation has stated that "Electronic cigarettes containing nicotine from tobacco leaves are tobacco products regulated in the state of Florida. It is unlawful to sell tobacco products, including electronic cigarettes, to a person under 18 years of age." However, there is no statute classifying electronic cigarettes as tobacco products, leading to confusion.

"By passing this local ordinance, Indian River County has cleared up any confusion," said Dr. Barry Hummel of the Tobacco Prevention Network of Florida. "The county commissioners unanimously adopted new rules for this new class of tobacco products, designed to keep them out of the hands of local middle and high school students."

Commissioner O'Bryan
Commissioner O'Bryan addresses the issue of the Florida Clean Indoor Air Act

During the public hearing, District 4 Commissioner Peter O'Bryan expressed some concern that the new ordinance did not protect people from being exposed to the vapor being emitted from electronic nicotine delivery devices. "Just so I'm clear, if I'm in a restaurant, and somebody powers up an electronic cigarette, is it correct for me to say that it is illegal for them to fire that up in the restaurant according to the Florida Clean Indoor Air Act?" asked Commissioner O'Bryan.

"Under the guidance provided by Alcohol, Tobacco, and Firearms, yes, that would be correct," responded County Attorney Dylan Reingold.

Dr. Hummel added to the discussion of the issue of the Florida Clean Indoor Air Act during the public hearing. "A lot of people promoting e-cigarettes will tell you that it's not smoking, that it's vaping. As a result of that, it's not really clear that it falls under the Clean Indoor Air Act... Don't think that a restaurant is obligated to kick somebody out who's using an e-cigarette in a restaurant. In fact, the e-cigarette industry would tell you exactly the opposite."

Dr. Barry Hummel
Dr. Barry Hummel, Tobacco Prevention Network of Florida,
discusses the Florida Clean Indoor Air Act during the public hearing.

District 5 Commissioner Bob Solari added, "With something like this, I don't think it's going to be socially acceptable to be smoking these things in restaurants, and I think that proprietors are going to be reasonably quick to put a stop to it without us stepping in. I would certainly like to give all proprietors the chance to do the right thing before we inject ourselves into it."

The Commissioners agreed to follow the issue of the use of these electronic drug delivery devices in public places, hoping the state would give them some guidance on such use.

You can view the entire public hearing here:

Indian River County Commission passes E-Cigarette Ordinance, October 22, 2013