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An observational study of compliance with North Dakota's smoke-free law among retail stores that sell electronic smoking devices
  1. Kelly Buettner-Schmidt1,
  2. Donald R Miller2
  1. 1School of Nursing, North Dakota State University, Fargo, North Dakota, USA
  2. 2School of Pharmacy, North Dakota State University, Fargo, North Dakota, USA
  1. Correspondence to Professor Kelly Buettner-Schmidt, School of Nursing, North Dakota State University, NDSU Department 2670, P.O. Box 6050, Fargo, ND 58108-6050, USA; Kelly.buettner-schmidt{at}ndsu.edu

Abstract

Objective To determine whether retail stores selling electronic smoking devices or liquid nicotine were compliant with North Dakota's smoke-free law.

Methods During June 2015, retail stores selling electronic smoking devices or liquid nicotine (n=16), but not legally required to be licensed to sell tobacco products, were assessed for compliance with North Dakota's smoke-free law by observing for smoking or e-smoking, or evidence of such, in prohibited areas and for the presence of required no-smoking signs.

Results Use of e-cigarettes, or evidence of use, was observed inside 8 (50%) stores required to be smoke-free. On the basis of all indicators of compliance assessed, compliance with the state's smoke-free law was low, with only 6% and 44% of stores compliant with all indoor and outdoor requirements, respectively.

Conclusions To the best of our knowledge, this is the first U.S. study assessing retail stores selling electronic smoking devices or liquid nicotine for compliance with the smoke-free law. The use of e-cigarettes, or evidence of use, occurred in the stores where it is prohibited by law. Overall compliance with the smoke-free law was low. These stores should be licensed by the state, as are other tobacco retailers, because this may assist in education, enforcement and compliance with the law and increase public health protection.

  • Electronic nicotine delivery devices
  • Prevention
  • Public policy
  • Secondhand smoke
  • Surveillance and monitoring

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Introduction

Electronic cigarettes (e-cigarettes) are one type of electronic nicotine delivery system that is experiencing rapid growth in the U.S.1 The aerosol released from e-cigarettes contains particulate matter and is not considered as safe as clean air.2 ,3 North Dakota Century Code (NDCC) §23-12-09 to §23-12-11, Smoking in Public Places and Places of Employment,4 enacted in 2012, explicitly prohibited the use of e-cigarettes in the same public places and workplaces where smoking was prohibited. The law defines public as ‘an area which the public enters’. It also prohibited e-cigarette use and smoking within 20 feet of entrances, exits, operable windows, air intakes and ventilation systems of enclosed areas where smoking was prohibited. It required clear and conspicuous posting of signage in every place and at every entrance where smoking is prohibited by the law. North Dakota (ND) tax law required licensure of tobacco retailers (NDCC §57-36-25).5 Since neither e-cigarettes nor liquid nicotine are included in NDCC §57-36-25, retail stores selling electronic smoking devices or liquid nicotine but no other tobacco products as defined by the law were not required to have a retail tobacco license.5

However, these stores were considered both places of employment and public places; thus, they were required to comply with the smoke-free law. The stores were assumed to be at high risk for non-compliance because they were relatively new and fluid businesses. Table 1 shows a steady increase in the number of stores reported statewide between May 2014 and March 2016. The state agency responsible for tobacco control in ND reported receiving information leading to concerns of non-compliance by these stores (B Andrist, oral communication, 2015). This included informal reports of jars on store counters containing disposable e-cigarette sampling tips, leading the agency to believe that sampling was occurring indoors. Also, in September 2014, one store was officially charged with non-compliance with the smoke-free law and was ultimately found guilty of the charge. Additionally, between October and December 2013, two convenience/gas station stores, although not stores included in this study, were known to state that e-smoking could occur anywhere and anytime.

Table 1

Number of stores selling e-cigarettes from May 2014 to March 2016

The purpose of this study was to determine whether stores selling electronic smoking devices or liquid nicotine, but not required to have a retail tobacco license to sell tobacco, were compliant with the ND state smoke-free law. Since legislation had been proposed to require electronic smoking devices to be defined as a tobacco product, leading to taxation and licensing requirements, this study was intended to provide a baseline assessment of compliance with the smoke-free law by stores selling electronic smoking devices or liquid nicotine but not required to have a retail tobacco license to sell tobacco by state law. However, although other regulations were passed, the regulation defining electronic smoking devices as a tobacco product was not enacted (NDCC §12.1-31-03.2, 12.1-31-03, 12.1-31-03.1).6

Methods

This observational study assessed the levels of compliance with the ND smoke-free air law among the 16 retail stores statewide selling electronic smoking devices or liquid nicotine but not required by state law to be licensed to sell tobacco. Discrete data collection occurred from 9 June 2015 to 16 June 2015 between 10:00 and 14:30. The study was determined to be exempt by the appropriate institutional review board.

The state agency responsible for tobacco prevention provided the names of the retail stores selling electronic smoking devices or liquid nicotine. That state agency provides grants to all local public health agencies in ND, and one requirement of these agencies is to routinely assess for and report the opening of the retail stores selling electronic smoking devices in their respective counties. We believe this method was able to capture the latest store openings because of the funding mechanisms to and full geographic coverage of ND's local public health agencies who report the stores to a state agency on an ongoing basis. Specifically, every ND local public health agency receives tobacco prevention policy grant funding. The local public health agencies report all the stores that open and close to the state funding agency quarterly. Owing to the small population and rural environment, local public health agency personnel have intimate knowledge of their communities, and this increases our confidence in their reporting accuracy. We verified with the agency that reports were received by all local public health agencies for all counties.

The stores located within American Indian reservations were not included because reservations were exempt from the ND smoke-free law. To confirm that the store names provided did not contain any licensed tobacco retailer stores, the latest licensing list distributed by the ND Attorney General's office at the time of the study was obtained and compared with the store names provided. One unlicensed store was discovered by a data collector who drove past the store. After confirming that it was unlicensed, it was included in the study. In all, 26 retail stores selling electronic smoking devices or liquid nicotine were identified. Six had a ND tobacco retail license, leaving 20 in the sample; of these, 1 denied ever selling these products, 1 denied currently selling these products, and 2 were out of business, leaving a sample of 16 stores.

Compliance with NDCC §23-12-09 to §23-12-11, Smoking in Public Places and Places of Employment,4 was assessed indoors and outdoors by observation. Indoor assessment of compliance included the (1) presence of no-smoking signage conspicuously posted indoors, (2) presence of e-smoking indoors and (3) evidence of recent smoking or e-smoking indoors, as evidenced by the presence of used disposable tips for e-cigarettes and other indications, such as the presence of smoked butts of cigarettes, cigars and little cigars, and tobacco ashes or products in ashtrays or other receptacles. Outdoor assessment of compliance included the presence of (1) no-smoking signage outdoors at all entrances and visible from the outside and (2) smoking or e-smoking outdoors within 20 feet of doors, open windows or ventilation systems. Although not an indicator of compliance, the stores were assessed for a seating area or a lounge where people could have been encouraged to socialise and use e-cigarettes. Each indicator was tallied for descriptive summary statistics.

Three trained data collectors completed the observations using a standardised data collection form. The data collection form was modified from an existing compliance form used by the ND state agency responsible for tobacco control and used in other compliance checks by the agency. Data collectors were instructed to practise estimating 20 feet by stepping out 20 feet using a tape measure.

Results

All stores meeting the study's definition were assessed (N=16). Only one store selling electronic smoking devices or liquid nicotine was compliant with all of the indoor and outdoor requirements of the state's smoke-free law.

For indoor compliance, e-smoking was observed in 3 (19%) of the stores, with 1 of the stores described as ‘overwhelmingly smoky inside.’ Used disposable tips were present in 7 (43%) stores, 2 of which also had observed use of e-cigarettes. Therefore, 8 (50%) stores either had observed e-smoking or evidence of such. Interior no-smoking signs were observed inside only 1 (6%) store. One additional store was located inside a mall; therefore, the indoor signage requirement was not applicable, and the store was considered compliant. In all, for indoor compliance, 1 store was compliant with all the indicators assessed. Although not an indicator of compliance, 9 (56%) stores had a seating area or a lounge that could have been used to encourage people to socialise and use e-cigarettes.

For outdoor compliance, no one was observed smoking or e-smoking within the required outdoor smoke-free areas of the stores. Exterior no-smoking signs were observed at 6 (38%) stores. For the one additional store located inside a mall, the exterior signage was not applicable, and thus this store was considered compliant, making a total of 7 (44%) stores compliant with exterior no-smoking signs.

Discussion

This study included 16 retail stores that sold electronic smoking devices or liquid nicotine but were not required to have a tobacco retail license by state law. E-smoking was observed inside three stores, with one store characterised as being ‘overwhelmingly smoky.’ Evidence of recent e-smoking occurred inside 50% of the stores. Including all indicators of compliance assessed, compliance with the state's smoke-free law was low, with only 6% and 44% of stores compliant with all indoor and outdoor requirements, respectively. One store (6%) was compliant with the state's smoke-free law. Low compliance with the required smoke-free signage may have increased e-smoking in prohibited areas.

There are several limitations of this study. Since ND does not have a licensing system for retail stores that sell electronic smoking devices or liquid nicotine, the stores sampled were identified systematically as described previously. More stores could have existed but may not have been reported due to the rapid evolvement of the stores and the lack of a state licensing requirement to sell the products that would enable tracking of the location and ownership of the stores. Since all observations occurred only once from 10:00 to 14:00, we may have missed peak times for sales when observations could have differed. The small sample size limits generalisability, as does the exclusion of other tobacco retail stores. At the time of the study, licensed tobacco retailers were not required to identify the types of tobacco or delivery devices sold. Thus, our results only apply to retail stores that sold electronic smoking devices or liquid nicotine but were not required to be licensed. The results cannot be generalised to licensed tobacco stores that sell electronic smoking devices.

Future studies should be expanded to include all retailers who sell electronic smoking devices. Discrete data collection occurred to prevent a change in behaviour by people in the stores7 and to prevent stores from communicating with each other regarding the compliance check. Thus, we are unaware of reasons store owners or managers allowed e-smoking in required smoke-free areas. Follow-up studies could determine reasons for allowing e-smoking in the prohibited areas.

Conclusion

To the best of our knowledge, this is the first U.S. study to assess compliance with smoke-free laws among retail stores that sell electronic smoking devices or liquid nicotine but that are not required to have a retail tobacco license to sell tobacco. E-smoking occurred inside the stores, even though it has been prohibited since 2012 by the ND state smoke-free law. In the current study, only one store was compliant with the state's smoke-free law. Retail stores selling electronic smoking devices or liquid nicotine should be licensed by the state, as are other ND tobacco retailers, to assist in education, enforcement and compliance with the law and increase public health protection. Since this study occurred in only one state, we encourage replication of our study in other states.

What this paper adds

  • To the best of our knowledge, no U.S. study has assessed compliance with smoke-free laws among retail stores that sell electronic smoking devices or liquid nicotine but that are not required to have a retail tobacco license.

  • Findings provide evidence that e-smoking is present inside retail stores that sell electronic smoking devices or liquid nicotine, where it has been prohibited by law since 2012.

  • This study highlights the need for retail stores that sell electronic smoking devices or liquid nicotine to be licensed, as are other tobacco retailers, to assist in education, enforcement and compliance with the law and increase public health protection.

Acknowledgments

The authors thank Jeanne Prom, Executive Director, and Barbara Andrist, Statewide Grants Manager, of the North Dakota Center for Tobacco Prevention and Control Policy, for their support for this study and permission to use and modify their questionnaire. The authors thank Anne Mattarella for editing this article.

References

Footnotes

  • Funding This study was funded with a grant from the North Dakota Center for Tobacco Prevention and Control Policy.

  • Competing interests None declared.

  • Ethics approval North Dakota State University.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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