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Massachusetts Becomes Latest State To Expand Tobacco-Related Regulations To Independent Schools

As vaping on campus has become more prevalent, federal and state lawmakers have responded by expanding laws regulating tobacco use by minors. Recently, Massachusetts joined those states and also revised its anti-smoking law to apply to all schools, including independent schools.

In light of both new and pending legislation on this topic, independent schools in the Commonwealth and nationwide should take a fresh look at their current tobacco policies to make sure that they are compliant with all legal mandates as well as best practices.

Background On Laws Governing Use Of Tobacco In Schools

The federal Pro-Children Act, which does not apply to most independent schools, prohibits smoking in facilities where federally funded children's services are provided, including most public K-12 schools. Just last month, U.S. Senators Tom Udall and Orrin Hatch introduced bipartisan legislation that would broaden the scope of the Pro-Children Act to encompass e-cigarettes and vaping.

States and municipalities have been even more active in revising anti-smoking laws, expanding not only the types of products that are prohibited (e.g., vaping), but also where such laws apply. Frequently, lawmakers have extended such laws to encompass all schools, including independent schools. Thus, today, states such as New York, New Jersey, and Colorado (among others) have in place anti-smoking statutes that apply to independent schools.

By way of example, New York's Public Health Law is significantly broader than the federal law, prohibiting all smoking and vaping, and also extending to all buildings and outdoor grounds, of all schools, including independent schools. The New York law does provide an exception for smoking or vaping "in a residence" (i.e., faculty housing).

Each school should be aware of the specific laws that apply in its locality. To the extent that a law specifically extends to independent schools, the school should verify that its policy is compliant (e.g., confirm that the policy includes the requisite definition of "tobacco products").

New Massachusetts Law

In July of 2018, Governor Baker signed a law making Massachusetts the sixth state and the second New England state (after Maine) to raise the legal age to buy tobacco and certain "tobacco products" - including cigarettes and e-cigarettes - to twenty-one.

The law also contains two provisions that are directly relevant to independent schools. First, the law provides that no person may use a tobacco product "within the school buildings or facilities or on the grounds or school buses of a public or private primary or secondary school or at a school sponsored event." Thus, all children and adults are prohibited from using tobacco products on school grounds.

Significantly, the law defines "tobacco product" quite broadly to encompass any product containing, made, or derived from nicotine and designed to be consumed, by, among other methods, smoking or chewing, or that is "ingested by any other means including, but not limited to, cigarettes . . . chewing tobacco . . . electronic cigarettes . . . electronic pipes, electronic delivery systems or any other similar products that rely on vaporization or aerosolization." The definition also includes any "component, part or accessory of a tobacco product," but specifically excludes FDA-approved tobacco cessation products. Again, the prohibition against the use of tobacco products in schools and on school grounds extends to all adults.

Second, the law mandates that each school committee or Board of Trustees establish a policy regarding violations of the tobacco prohibition, which "may include, but shall not be limited to, mandatory education classes on the hazards of using tobacco products." Thus, at a minimum, the Board of Trustees of each Massachusetts independent school should approve the school's anti-smoking policy.

Recommendations

In light of the evolving climate of federal, state, and local laws relative to tobacco use in schools, independent schools should review their current policies governing the use and possession of tobacco products by students, employees, and guests on campus, to ensure that school policy is consistent with applicable law and developing best practices.

Because most applicable laws do not require that schools adopt any specific policy language, independent schools are generally free to fashion policies that are consistent with their culture, as long as those policies meet the minimum requirements of the law.

Important elements of an anti-tobacco policy will typically include: (1) the school's rationale for its anti-tobacco policy; (2) a clear definition of the prohibited conduct; (3) a description of the school's anti-tobacco education programming and support services (if any); and (4) an indication of how the policy will be enforced and what penalties will be considered for violations.

In direct response to these new mandates, schools should consider the following:
 

• Anti-smoking policies should be broad enough to prohibit - at a minimum - all of the activities proscribed by all applicable federal, state, and local laws. This might mean any or all of:

-Revising the definition of tobacco products.
-Broadening the scope of the activities to which the policies apply.
-Ensuring that school policies cover all individuals - students, employees, visitors, etc.
 

• The anti-smoking policy should address how the school handles policy violations. Different standards will likely apply to different classes of individuals (i.e., students, faculty/staff, parents, other visitors).

• Per the new Massachusetts law, each independent school in the Commonwealth must ensure that the Board of Trustees establishes policies and procedures regarding violations of the school's anti-tobacco policy, which could include traditional disciplinary protocols, educational programming, etc.

Because independent schools approach anti-tobacco education and enforcement differently, there is no one model policy that will be right for every school.

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If you would like our assistance in updating your school's anti-tobacco policies, or if you have any other questions relating to the new Massachusetts law, please feel free to contact one of our experienced attorneys specializing in independent school law.