L.L. 2017/187

Enactment date: 10/16/2017  

Int. No. 139-C

By Council Members Gentile, Koo, Vacca, Cabrera, Johnson, Torres, Rodriguez, King, Dromm, Palma, Richards, Treyger, Greenfield, Mendez, Eugene, Barron, Maisel, Salamanca, Lander, Mealy, Cohen, Rosenthal, Miller, Rose, Cumbo, Koslowitz, Vallone, Menchaca and Ulrich

A Local Law to amend the administrative code of the city of New York, in relation to the regulation of non-tobacco smoking products, and to amend the fire code of the city of New York, and the New York city mechanical code, in relation to the operation of non-tobacco hookah establishments

Be it enacted by the Council as follows:

Section 1. Legislative findings. The Council finds that smoking is a leading cause of preventable premature death in New York City, killing thousands of New Yorkers every year and increasing the risks of lung cancer, heart disease, and many other health hazards. The City responded to this threat by enacting the Smoke-Free Air Act in 1988, amending it in 2002 to restrict tobacco smoking in various indoor and outdoor public places, and strengthening it several times since 2002. The Smoke-Free Air Act remains a central part of the City's comprehensive program to reduce exposure to environmental toxicants produced by smoking and to reduce and prevent tobacco use.

Despite substantial progress in reducing both environmental smoke exposure and smoking rates among adults and youth, the use of water-pipes, or hookah smoking, is increasing and threatens the progress the City has made to reduce tobacco use by residents and visitors to the City. The number of establishments in the City advertising hookah on Yelp! is almost five times higher than it was in 2012. Disturbingly, hookah is especially popular among the City's youth. Between 2008 and 2016, the percentage of middle school students in the City who have smoked hookah increased from 2.9 percent to 5.6 percent. As of 2016, the percentage of high school students who have smoked hookah is 16.4 percent. The increase in younger New Yorkers' hookah smoking is particularly troubling because some studies suggest youth who smoke hookah may be more likely to try cigarettes.

The Council finds that hookah smoking, regardless of whether the shisha contains tobacco, poses significant health risks to smokers and nonsmokers, including employees at establishments that serve hookah. All hookah smoking involves burning charcoal, which is used to heat the shisha. The charcoal alone creates health hazards for smokers and those exposed to secondhand smoke by emitting carbon monoxide, fine particulate matter, and various toxicants. In addition, non-tobacco shisha has been shown to emit harmful substances in equal or greater quantities as tobacco-containing shisha, including carbon monoxide, polycyclic aromatic hydrocarbons, fine particulate matter, tar, and volatile aldehydes. While risks associated with non-tobacco hookah smoking are clear, air quality in the City's hookah establishments is complicated further by evidence that many hookah establishments have been found to be violating the Smoke-Free Air Act by serving shisha that contains tobacco. In addition to the toxicants emitted by non-tobacco shisha, tobacco-containing shisha has been shown to emit phenols, nicotine, and NNAL, a tobacco-specific nitrosamine. Thus, unsuspecting patrons of hookah establishments may be consuming tobacco unwittingly, in addition to the harmful substances emitted by charcoal and tobacco shisha.

The Council further finds that regulating non-tobacco smoking would promote enforcement of the City's Smoke-Free Air Act and Fire Code. Regulating non-tobacco hookah establishments would also likely strengthen the City's ability to promote compliance with the Smoke-Free Air Act by preventing non-tobacco hookah establishments from serving tobacco-containing shisha to unsuspecting consumers. Moreover, reasonable precautionary regulations will minimize the risk that hookah pipes and charcoals may contribute to the creation of fire hazards.

The Council hereby declares that this local law responds to the significant health hazards posed by hookah smoking in the following ways: (1) it protects the integrity of the City's Smoke-Free Air Act, which was intended to provide all New Yorkers with access to clean air in public places and workplaces, by discouraging smoking and reducing exposure to secondhand smoke for nonsmokers; (2) it continues the City's efforts to de-normalize smoking and reduce tobacco dependence; and (3) it restricts access to establishments where hookah smoking can take place.

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[Consolidated provisions are not included in this Appendix A]

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§ 17. The department of health and mental hygiene shall educate businesses that sell non-tobacco smoking products, as defined in subdivision zz of section 17-502 of the administrative code of the city of New York, or which permit the smoking of such non-tobacco smoking products, about their obligations pursuant to this local law and any rules promulgated thereto.

§ 18. This local law takes effect 180 days after it becomes law, except that:

   (i)   section seventeen of this local law takes effect immediately, and is deemed repealed 1 year after it becomes law;

   (ii)   subdivision b of section 17-716 of the administrative code of the city of New York, as added by section ten of this local law, takes effect on the same day as a local law for the year 2017 amending the administrative code of the city of New York in relation to prohibiting the sale of non-tobacco smoking products to minors and young adults, and repealing subdivision f of section 17-713 and section 17-714 of the administrative code of the city of New York, relating to the sale of herbal cigarettes to individuals under eighteen years of age, as proposed in introduction number 1076-A for the year 2016, takes effect;

   (iii)   section 403.3 of the New York city mechanical code and table 403.3 of such mechanical code, as amended by sections twelve and thirteen of this local law, respectively, take effect 3 years after enactment of this local law; and

   (iv)   the department of health and mental hygiene and the fire commissioner may take such actions, including the promulgation of rules, as are necessary for timely implementation of this local law, prior to the effective date of this local law.