AuthorOrenstein, Daniel G.


The march toward cannabis legalization has triggered an array of law and policy challenges. Many of the issues presented are novel, but others have direct links to other longstanding controversies. In public health law, one of the clearest parallels is between regulating cannabis smoking and tobacco smoking. (1) With that broad frame, emerging tensions related to cannabis consumption in multiunit housing (MUH) are inextricably intertwined with similar disputes in the tobacco control context. (2) Nationally, over one in four U.S. residents live in MUH, and the proportion is far higher in some states. (3) However, these issues are particularly salient for urban communities, in which an even higher share of the population typically lives in MUH. (4)

Both cannabis use and tobacco use are frequently framed as self-regarding actions that affect only the person using the substance. However, this is often not the case, particularly with respect to smoking, vaporizing, and vaping, which remain the most common methods of both cannabis (5) and tobacco (6) consumption in the United States. Smoking and other aerosol-producing methods each pose potential health risks not only to the person using the product but also to those nearby who are exposed to secondhand smoke (SHS), thirdhand smoke (THS), or chemicals present in other aerosolized emissions. (7) In the context of MUH, this includes those who are exposed to emissions that travel through shared ventilation, windows, walls, and other pathways and intrude into other units. (8) According to a 2015 Centers for Disease Control and Prevention (CDC) report, despite declines in SHS exposure over the past decades, over one in three nonsmokers who live in rental housing are still exposed to SHS. (9)

Many property owners prohibit smoking in rental units. In part, this is motivated by a desire to prevent direct damage from smoke, but smokefree rules also reduce owners' legal exposure to claims by tenants impacted by others' smoking. (10) In addition to property owners' voluntary smokefree policies, a small but growing number of localities have specifically mandated smokefree rules for both public and privately-owned MUH to protect the right of all tenants to breathe smokefree air. (11) Many smokefree rules, whether imposed by contract or state or local law, explicitly apply to tobacco, but a growing number now also include cannabis. (12) The extension of MUH tobacco smoking bans to cannabis is logical, as the smoke produced by both substances is highly similar. (13) However, two significant complications demand attention.

First, the variety of noncombustible forms of cannabis requires a nuanced approach. Smoking cannabis typically uses the dried flower of the plant, (14) which can also be heated to a lower temperature for vaporization without combustion. (15) Oils, extracts, and concentrates derived from the plant, which generally have far higher concentrations of active cannabinoids such as delta-9-tetrahydrocannabinol (THC), can also be consumed via smoking, vaping/aerosolizing, or "dabbing." (16) Smoked cannabis is highly similar to smoked tobacco, and vaporized or vaped cannabis products are likewise reasonably similar to comparable tobacco products. However, the evidence base for the effects of cannabis on health is underdeveloped compared to tobacco. This is particularly true for nonsmoking consumption methods. (17) While the legal underpinnings of MUH smoking restrictions easily apply to smoked cannabis and credibly extend to vaporized and vaped cannabis, generalized prohibitions on all cannabis use in MUH properties are on far less stable ground, as products like edibles or tinctures are unlikely to produce relevant risks to the unit or other residents. (18)

Second, the absence of available public spaces for cannabis differs markedly compared to tobacco use. Persons who use tobacco products may legally do so in a variety of locations outside a MUH property, for example by relocating to a parking lot, sidewalk, or another nearby site. In contrast, nearly all jurisdictions that have legalized medical or recreational cannabis continue to prohibit public cannabis use. (19) As a result, renters who use cannabis may risk arrest or other penalty for using cannabis outside their homes, but they also potentially risk eviction or other threats to housing security for using cannabis within their homes in violation of lease terms. The troubling history of cannabis prohibition (20) and the War on Drugs more broadly (21) intersects here with inequities in housing access, as those populations disproportionately harmed by cannabis prohibition--predominantly

Black and Hispanic persons--are also more likely to be renters. (22) These overlapping concerns make the issue of regulating cannabis use in MUH one of particular importance for urban law and policy, as urban residents are more likely to be renters, MUH residents, and members of minoritized and other marginalized populations.

This Article explores the legal and ethical grounding of restrictions on cannabis use in MUH properties, situating these issues in the context of both existing tobacco control and the unique history of cannabis prohibition. Part I surveys the current scientific evidence base related to cannabis smoking, including comparisons to tobacco smoking, with emphasis on risks posed by secondhand smoke and thirdhand exposure. This Part also explains similar concerns related to aerosol emissions from noncombustible cannabis and tobacco products, such as vape pens and e-cigarettes. Part II describes the unique vulnerabilities of MUH and equity implications related to urban populations, communities of color, and other groups in their exposure to cannabis and tobacco in these settings. This Part also outlines key elements of existing legal frameworks for smoking prohibitions in MUH and underlying legal theories. Part III considers the distinctive legal challenges posed by cannabis regulation, including its status under federal law, continuing state prohibitions on public cannabis use, and the use of cannabis as medicine. This Part also contextualizes cannabis regulation in the history of cannabis prohibition and the War on Drugs, including how this history intersects with urban populations, housing, and equity. Part IV offers recommendations for improving smokefree protections for MUH. Specifically, this Article recommends that smokefree policies include all cannabis products that produce smoke or aerosols while avoiding complete prohibitions on cannabis use and that such approaches be incorporated into local or state law as a means of promoting equity. However, enforcement must focus on non-punitive measures to avoid exacerbating existing housing inequities.


    1. Combustible Tobacco and Cannabis Products

      The myriad health risks of tobacco smoke for the smoker are at this point well known and have been so for decades. (23) The dangers of SHS were slower to be recognized but are also well established. (24) SHS, also known as "environmental tobacco smoke," is the inhaled mixture of particles and gaseous components from sidestream smoke (emitted from the lit, smoldering end of a combustible product) and mainstream smoke (inhaled and then exhaled by the smoker). (25) SHS contains many of the same components as directly inhaled smoke and consequently poses many of the same health risks. (26) Tobacco SHS is known to cause premature death in children and adults, increase the risk of numerous childhood ailments, adversely affect cardiovascular function, and cause coronary heart disease and lung cancer. (27) To reduce the population health impacts of SHS exposure, tobacco control advocates have spent decades advancing clean indoor air laws at the local and state levels across the country. (28) However, MUH remains a modern frontier for clean air laws (29) and an important source of continued involuntary SHS exposure. Tobacco smoke passes easily between units in MUH through walls, ductwork, ventilation systems, windows, and similar pathways. (30) Mitigation methods such as air purifiers, ventilation, or fans cannot eliminate these exposure risks. (31)

      Recent evidence also indicates the potential for harm from what has been termed "thirdhand smoke" (THS). THS refers to residue that adheres to and accumulates on and in various surfaces, including carpets and furniture. (32) Chemicals and compounds from this residue can enter the body through inhalation, ingestion, or through the skin, which poses particular risks for infants and children due to their developmental stage and common behaviors, including crawling and placing objects in their mouths. (33) Tobacco THS contains a variety of volatile and semi-volatile organic compounds that can cause adverse health effects in humans. (34) While SHS exposure occurs during or shortly after smoking, THS exposure can persist long after smoking has ceased. (35) Long-term smoking in a particular location may produce a substantial buildup of THS residue, including on surfaces that are difficult to access and clean, making remediation difficult. (36) These accumulations can continue polluting the remainder of the home by releasing volatile compounds into the air that are then absorbed by other objects. (37) In the context of MUH, this means that a prior occupant's smoking behaviors can expose a future resident to toxic substances even if the new resident steadfastly maintains a smokefree home and even if the property adopts a smokefree rule. (38)

      Compared to tobacco, there is considerably less evidence regarding the harms of cannabis smoke. (39) This includes a general dearth of data related to long-term health outcomes associated with either primary cannabis smoke exposure by the smoker or SHS and THS exposures. A 2017 systematic review identified only eight experimental studies in controlled environments assessing the immediate...

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