Legal Matters

Vaping in schools has captured the attention of principals across the United States. For instance, during the 2017–18 school year, school administrators in Connecticut addressed 2,160 incidents involving vaping. Several schools treat vaping the same way they do tobacco, while others have classified the vaporizers as “drug paraphernalia.” Some school leaders respond to vaping as an addiction problem; others see it as a discipline issue. Bob Farrace, director of public affairs at NASSP, noted in Education Week, “The schools that seem to be most effective are those that are, of course, enforcing their disciplinary code—they can’t do otherwise—but are using that as the floor and not the ceiling.” Due to health concerns and the disruption vaping may cause in schools, school personnel are developing policies to target this issue. Given the success of earlier antismoking campaigns, schools can be prime locations to launch new public health initiatives aimed at curtailing e-cigarette use.

National Attention and Resources

Several reports highlight that vaping poses serious health risks, especially for teenagers. Because of high nicotine levels, vaping is addictive and may open the door to future drug and alcohol abuse. One report suggests that vaping may be causing an uptick in the number of seizures in young adults.

These health risks can translate into problems at school as well. One of the most widely documented side effects of e-cigarette use is decreased attention span, which affects classroom performance. Other side effects such as increased heart rate and blood pressure can affect performance in sports. Due to these health concerns, it is not surprising that this issue is receiving attention as it relates to schools.

At the national level, the most applicable law pertaining to school vaping is the Family Smoking Prevention and Tobacco Control Act, which was intended to combat cigarette use by tackling sales to minors; it is currently being retrofitted to address e-cigarettes. State legislatures, too, have attempted to address the problem on a more local level through public health campaigns or tax hikes in an effort to raise the cost of tobacco products. In 2017, New York amended its Clean Indoor Air Act to address e-cigarettes. Oklahoma has passed a law prohibiting vaping on school property. While steps are being taken toward regulating these products—particularly when it comes to kids—these measures indicate a patchwork approach to a serious problem and indicate the speed with which vaping is spreading through high schools and younger grades. In fact, students are beginning to use e-cigarettes at younger ages. One study from NPR reports that 10th graders saw the highest jump from 2017 to 2018, going from 8 percent to 16 percent of students using e-cigarettes. Additionally, the percentage of eighth graders using e-cigarettes jumped from 3.5 percent to more than 6 percent.

As a result of the rise in e-cigarette use among students, a number of governmental organizations have also taken steps to address the growing epidemic. For example, the U.S. Food and Drug Administration has revamped its Youth Tobacco Prevention Plan to include e-cigarettes, and the agency has taken steps to curtail the sale of such products to minors. Similarly, the Centers for Disease Control and Prevention has launched an educational campaign to raise awareness of the destructive effects of e-cigarettes. In particular, it highlights the dangers of e-cigarette use and also focuses on parent education to help wean addicted teens off nicotine. Stanford Medical School has created prevention programs for secondary schools, and the California Department of Education includes information about policy implementation. The American Lung

Association and the Departments of Health in Minnesota and Massachusetts have addressed the issue within the context of schools as well. These different programs and campaigns can assist school leaders in addressing many of these health concerns.

Recent Legal Controversies

E-cigarettes are a newer phenomenon, and not surprisingly there have only been a few related legal challenges. In Washington, for example, a high school student challenged school officials’ search of his car in the school’s parking lot. During the search, they discovered vape oils and other concerning paraphernalia. The student was suspended, and he sued the school district. He claimed that the search of his car was illegal, but the federal district court granted the school district’s motion for summary judgment. Because of the prevalence of e-cigarettes in schools, it is likely that legal issues related to search and seizure will increase.

A few other challenges do not directly involve schools but raise interesting questions. E-cigarettes, particularly JUUL devices, have become widely popular with teenagers as a result of successful social media advertising campaigns that target teenagers by utilizing popular platforms like Snapchat and Instagram. This advertising has resulted in a lawsuit contending that JUUL engaged in false and deceptive advertising practices, deliberately targeted toward teenagers, despite the ban on such advertising. In addition to false advertising, this lawsuit also alleges that the e-cigarette manufacturer misrepresented the amount of nicotine in its products, which has led to much higher addiction rates.

Another case concerns the effects of e-cigarette use on one teenager. In this personal injury suit, the student argues that e-cigarette use led to severe nicotine addiction that has jeopardized the teen’s health. The case also brings in the other oft-cited problem with JUULs into the complaint—the flavor of the fluid pods to which many teenagers are attracted. This lawsuit specifically mentions creme brulee and mango, but other flavors such as cotton candy and sour gummy worms have also been mentioned as ones the company may be using to target younger users. These cases are still working their way through the judicial system but have the potential to set the precedent for future lawsuits that are likely forthcoming given the scale of the issue.

Conclusions and Recommendations

Schools should take action early to reduce the number of students using e-cigarettes. While teens are more likely to use e-cigarettes rather than cigarettes, teens who vape are much more likely to transition to cigarettes than those who do not use e-cigarettes. As a result, we offer the following recommendations:

  1. School leaders should review their tobacco-use-on-campus policies and make sure that they are updated to clearly convey that e-cigarettes are tobacco products and should not be used while at school.
  2. School officials should familiarize themselves with what popular devices look like to prevent use in classrooms (for example, many JUULs can be mistaken for USB drives).
  3. Administrators could consider a public health campaign in their schools by posting materials to increase awareness and educate teachers and students alike.
  4. School leaders should ensure that health curriculum is updated to include e-cigarettes in discussions of the harmfulness of tobacco.
  5. Schools may also consider sharing resources for quitting tobacco and combating nicotine addiction.

Ingrid Barce graduated from the Indiana University Maurer School of Law with a minor in educational policy. She practices law at Barce & Redlin, P.C., in Fowler, IN, including education and municipal law. Suzanne E. Eckes, JD, PhD, is a professor at Indiana University, Bloomington, IN, co-author of Principals Avoiding Lawsuits, and the immediate past president of the Education Law Association.


References

Associated Press (May 18, 2019). Discipline or treatment? Schools rethinking vaping response. Retrieved from www.edweek.org/ew/articles/2019/05/26/discipline-or-treatment-schools-rethinking-vaping_ap.html

CA Dep’t of Educ. (Mar. 6, 2019). E-smoking systems use prevention resources. Retrieved from www.cde.ca.gov/ls/he/at/ends.asp

Colgate et al. v. Juul Labs, Inc., 2018 WL 5619679 (N.D. Cal. Oct. 30, 2018)

D.P. v. Juul Labs, Inc. et al., 2018 WL 3195198 (S.D.N.Y. June 26, 2018)

Rorvik v. Snohomish Sch. Dist., 2018 U.S. Dist. LEXIS 139055 (W.D. Wash. 2019)

School E-Cigarette Toolkit (Mar. 27, 2019). Minn. Dept. of Health. Retrieved from www.health.state.mn.us/communities/tobacco/ecigarettes/docs/schooltoolkit.pdf

Stein, R. (Dec. 17, 2008). Teen vaping soared in 2018, NPR. Retrieved from www.npr.org/sections/health-shots/2018/12/17/676494200/teen-vaping-soared-in-2018

Toolkit for Schools (Apr. 2019). Mass. Dept. of Pub. Health. Retrieved from http://makesmokinghistory.org/dangers-of-vaping/schools