The WHO Framework Convention on Tobacco Control has stimulated the passage of comprehensive clean indoor air laws throughout the world.1 Although WHO guidelines stress the importance of universal protection from secondhand smoke in such laws,2 many states in the USA exempt certain locations such as tobacco retail establishments and tobacco bars/cigar lounges.3 ,4 Tobacco waterpipe (ie, hookah) establishments are often exempt from these laws, are growing in popularity and may change social norms regarding hookah use.3 ,4 Indeed, hookah use among young people in the USA appears to be increasing,5 as it is elsewhere,6 and the limited research available suggests it may be associated with negative health effects (eg, nicotine dependence, cancer).5 In this letter, we describe the exemptions in Oregon's Indoor Clean Air Act (ICAA), subsequent proliferation of hookah lounges and associated monetary costs, as well as patterns in youth hookah use. To our knowledge, this is the first such published study in the USA.

Oregon's ICAA took effect in January 2009. This legislation prohibits smoking in almost all indoor public places and indoor workplaces except smoke shops and cigar bars certified by the Oregon Tobacco Prevention and Education Program (TPEP). Legislators intended the smoke shop exemption for the purpose of sampling at tobacco retail stores.7 However, ‘sampling’ was not well defined in the exemption, and the statutory definition of ‘smoke shop’ was broad enough to cover hookah lounges: a smoke shop was defined as a stand-alone business with at least 75% of sales from tobacco products or instruments, could not sell food or alcohol for on-premises consumption, or offer video lottery games, social gaming or betting on the premises, and had to prohibit persons <18 years old.8

As of May 2012, TPEP had received 52 applications from businesses to be certified as exempt from the ICAA; the majority (30/52=58%) have been from hookah lounges (figure 1). Although the certification process was meant to ensure that exemptions to the ICAA took place in only a small number of tightly regulated businesses, the poorly defined exemption language resulted in a certification process that actually assisted this new niche tobacco market (ie, hookah lounges) to emerge. Furthermore, certifying businesses has been costly to TPEP: about $5000 per application when considering costs due to staff time used, application processing and legal fees. Costs were more than expected due to inaccurate applications that require staff follow-up and legal challenges from lounges denied certification. Since TPEP receives no additional funding for certifying businesses, staff time that should be devoted to supporting evidence-based practices was diverted to supporting the opening of these new businesses. For example, the TPEP policy specialist was spending about 75% of his time helping with these applications during 2010.

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Figure 1

Cumulative number of smoke shops certified over time, by establishment type. Note: Oregon House Bill 2726 passed in June 2011; this Bill tightened the smoke shop definition, but failed to close the loophole completely.8

In addition to more hookah lounges opening, youth hookah use has become more common in Oregon. Using Oregon school-based survey data,9 we found that between 2008 and 2009 the prevalence of hookah use in the past 30 days significantly increased among 8th graders from 2.2% (95% CI 1.8% to 2.5%) to 3.9% (95% CI 3.1% to 4.9%) and among 11th graders from 7.9% (95% CI 7.0% to 8.8%) to 10.8% (95% CI 9.7% to 12.0%).10 These results highlight the growing hookah problem and need for monitoring use.

Oregon's experience demonstrates how clean indoor air exemptions can inadvertently support the growth of a new niche market. Efforts have been made to change Oregon's law so hookah lounges are no longer exempt, but have not yet been fully successful in closing this loophole.8 Ideally, clean indoor air laws should have no exemptions when passed, but if they do, the exemption definitions should be made specific enough to avoid supporting new niche markets for tobacco, as others have done.5