Senior Partner in a NH law Firm approaches you…
- My son got caught inhaling and exhaling CBD fumes produced by an electronic cigarette or similar device. The principal said the device looked like a flash drive.
- N.H. Department of Health and Human Services, 14,837 students in 67 New Hampshire high schools were surveyed. 30% inhale these substances.
-The Centers for Disease Control states e-cigarette aerosol contains harmful and potentially harmful substances, including: nicotine; ultrafine particles that can be inhaled deep into the lungs; flavorings such as diacetyl, a chemical linked to a serious lung disease; volatile organic compounds; cancer-causing chemicals; and heavy metals such as nickel, tin and lead.
- I think there is no statewide ban. I am in the NH Senate & want to introduce a bill to ban this in a session today.
- I need to know all about legislation from all states on this topic within the next 10 minutes.
- There is no client to bill, so don’t run up costs. Do you think you can handle it?
- Make sure its from an accurate & reliable source so I don’t look bad.
One common task assigned to law students during their first summer job is to find or compile a fifty-state statutory survey. It has been called by one author, “One of the most daunting and painful research projects asked of research assistants… You are being asked to find the law on a particular topic in all 50 states. This type of project often appears when doing research for lawyers because they like to point out that “x number of states have laws on y.” Searching all fifty states is challenging and a lot of work. On main reason is that there is often no uniform terminology used among all the states.
To work around this challenge, it’s best to find work that’s already been done. The first way is to ask someone in the office. If no one has done this task, there are many places to find compiled 50 state surveys and I highly suggest you try each of them before you try to put together a survey on your own.
The other "walk away message" from this guide is to be constantly mindful of legal regulations on the federal and local levels that might be included in your cover memo. As you will see, regulation of this practice is covered at federal and local levels. This information will likely be appreciated by your supervisor to have the best picture of the legal landscape available.
As you learned in your legal research class, the first step is to draft a list of things, actions, relief, and parties. For this guide, we will focus only on things as we need a set of keywords to use in Web, Lexis, Westlaw, and other search tools. If you do a Google search using" inhaling and exhaling CBD fumes produced by an electronic cigarette or similar device" you quickly see the popular name is vaping. If you do the same for thumb drive vaping devices you will see the popular name is Juuling. On the Federal level, the FDA has categorized these devices as electronic nicotine delivery systems, or ENDS. So, keep the TARP list updated for all the terms for these devices. You are now ready to start searching using the terms 50 state reviews of vaping or Juuling.
Google and other Search Engines
No surprise, when you do a search your results include a number of 50 state reviews by non-governmental organizations as well as industries with an interest in vaping. Here is a sample of some sites:
Your job at this point is to evaluate the authority of each of these sites and evidence of updating and currency. You will likely conclude that the NCSL site is the most authoritative and adds value by letting you know that the FDA will be regulating vaping. But not yet as of 2019, so you still need that 50-state review for your attorney.
Premium Tools
Your attorney asked you to keep costs low, so you may need to use the open web. When you are in law school or at a firm with access to premium legal research tools you will see that most offer one or more premium 50-state survey tools. Lexis, Westlaw, and Bloomberg Law will likely be your top choices from the list below. The value added to Lexis, Westlaw and Bloomberg Law is that the services keep them constantly up to date. It is often difficult to judge the currency and comprehensiveness of the open web alternatives.
Don’t forget bill to search tracking sources for bills in progress, especially for newly developing areas of lawmaking like vaping.
Think Broadly
Consider whether federal, state smoking statues and municipal ordinances might cover prohibiting vaping in some way. You will look like the expert researcher if you know and can be ready to have a discussion of the larger picture.
Sample state laws
Sample municipal ordinances:
Using News for New Developments
Given the multitude of words used to describe vaping products, searching New Hampshire newspapers often give an up-to-date picture of what is happening on the state and local levels. For example, in 2020, the Union Leader reports:
New Hampshire has joined 38 other states in investigating whether the sales and marketing practices of a popular vaping product targeted youth, Attorney General Gordon J. MacDonald. The investigation — which will be led by attorneys general from Connecticut, Florida, Nevada, Oregon, and Texas — focuses on Juul's sales and marketing practices, particularly with youth. Also under investigation are claims about nicotine content, risk, safety, and effectiveness as a smoking cessation device.“ We decided to join because of the seriousness of the allegations,” said Brandon Garod, a senior New Hampshire assistant attorney general and head of the Consumer Protection and Antitrust Bureau.
Federal Law
The FDA began looking at regulating vaping beginning around 2015. For five years, the FDA worked for the passage of statutes and regulations covering ENDS products. In 2020, progress has been made:
“The United States has never seen an epidemic of substance use arise as quickly as our current epidemic of youth use of e-cigarettes. HHS is taking a comprehensive, aggressive approach to enforce the law passed by Congress, under which no e-cigarettes are currently on the market legally,” said HHS Secretary Alex Azar. “By prioritizing enforcement against the products that are most widely used by children, our action today seeks to strike the right public health balance by maintaining e-cigarettes as a potential off-ramp for adults using combustible tobacco while ensuring these products don’t provide an on-ramp to nicotine addiction for our youth. We will not stand idly by as this crisis among America’s youth grows and evolves, and we will continue monitoring the situation and take further actions as necessary.”