Regulation of Hookah Bars – 7/21/05

Q: We are trying to track down information on how various state and local jurisdictions regulate hookah (water pipe, shisha) bars and lounges – in regards to smokefree laws or more generally in the context of other municipal rules/codes. While some jurisdictions may define them as "tobacco bars" others may not and simply regulate them as a restaurant, a bar, or none of the above. If you can provide us with specific citations in law/regulation/policy of how your state, county, city, town regulates/licenses these establishments (which are predominantly located on the West Coast but are appearing more regularly in cities and towns across the country), it would be greatly appreciated. Of particular interest is whether any laws/rules have any age restrictions for these establishments. Similarly, if the establishments are not being regulated, please let us know.

Editor’s note: The following information was submitted by Tobacco Control Network members in response to a request circulated in 2005. Click here for newer information (submitted January 2009) on states’ regulations pertaining to cigar and hookah bars, or click here for additional examples (submitted August 2010) of states’ policy language to regulate hookah use.

A:

1. California: The state of California regulates hookah bars via Labor Code 6404.5 (our smokefree workplace law), and via Penal Code 308 and the Stop Tobacco Access to Kids Enforcement (STAKE) Act, two state laws that prohibit the sale of tobacco to minors. Additionally, California requires all tobacco retailers to obtain a license to sell tobacco as of 2004. The State’s Food and Drug Branch conducts undercover buys that do not at this time include hookah bars, nor does the state’s random statewide youth purchase survey (used for Synar).
   
   There are exemptions within our law that would allow hookah smoking. However, the exemptions that exist are rarely, if ever, witnessed:
    
   • the store/lounge is solely operated by the owner (no employees), [In the early days of the law, some bar owners thought they could use this exemption and used creative strategies like not having employees, but volunteers. These schemes rarely succeeded because it is nearly impossible to run a retail business without at least one employee]
   • it was a retail tobacco shop whose main purpose was selling hookah tobacco or other tobacco’s [If a hookah bar is just selling hookah plugs and renting pipes, this too is not a realistic scenario because it would be very difficult to maintain this sort of business. There is probably not enough volume and the margin is not high enough to make a profit. Anecdotally, hookah bars also sell beverages and some light food]
   • there is one final exemption that could apply that involves establishments with five or fewer employees, [This is never met in the real world because the employer would have to comply with state and federal ventilation standards, of which none exist]

   A few years ago, our Director of Health Services sent a letter to public health and law enforcement agencies a few years ago bringing the issue of hookahs to their attention and alerting them that Labor Code 6404.5 could be used to enforce hookah smoking taking place indoors.
   
   The California Tobacco Control is working on a tool kit that can be used by local advocates to address hookahs, but by and large, the issue is one of maintaining diligence in enforcing our smokefree workplace law at the local level. That is easy to say for a state that has a comprehensive workplace smoking ban. I’m not sure how other states would go about addressing it in the absence of a law.
   
   We have not expended a great deal of resources on hookahs other than the tool kit, since hookahs are cumbersome and lack the portability and ease of use that exists with cigarettes.

2. Iowa: In the last (2005) legislative session, Iowa passed legislation that requires hookah bars to acquire a permit to operate as a retailer of tobacco products. Previously, only retailers selling cigarettes were required to receive a permit from the state, now retailers of any type of tobacco product are required to acquire a permit—and hookah bars fall under that definition. The permit is basically a permit to sell. It does not regulate where the retailer may be located or how the retailer operates.
    
3. Massachusetts: Massachusetts does not specifically regulate hookah bars but we include them in "smoking bars" under the 2004 Smoke-free Workplace Law. In order to be a smoking bar, a business must obtain a permit from the MA Dept of Revenue. Smoking bars are restricted to adults 18 and older. In order to get the permit, they must demonstrate that at least 51% of income is from the sale of tobacco products (includes hookah). This is a challenging standard so we are only have about half a dozen smoking bars and are aware of only one hookah bar in Massachusetts. Boston is experiencing a small trend of hookah being available on outdoor patios which we do not regulate as long as they meet our definition for outdoor dining. Contact Eileen Sullivan if there are further questions.
    
4. Michigan: In Michigan, we have the largest concentration of Arabs and Chaldeans in the country. The hookah, or arghile as it's often called among Arabs in Michigan, have become a huge issue in the Dearborn/Detroit area. We have two Arab/Chaldean agencies looking into this matter as well as educating the community that smoking the arghile is not a safe alternative to cigarette smoking. Currently, there are numerous restaurants in Dearborn where arghiles and flavored tobacco can be ordered directly from the menus. It appears that these businesses are regulated as restaurants. We are currently looking into whether they are violating Michigan's Youth Tobacco Act (preventing underage purchase and possession of tobacco products) and our Clean Indoor Air Act.
    
5. West Virginia: We do not have this problem as yet in WV, but we will address them with our local county regulations already in place.

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