By Kevin Lungwitz
Over the past 50 years we convinced an entire nation that smoking is bad. So, the companies told us to just put a pinch between our cheek and gum. Then we convinced a nation that tobacco is bad. Now vaping has entered the chat, where the tobacco is never handled or seen, and where it is not really smoked, but rather, electrically vaped. So, what could go wrong?
What is Vaping?
According to the U.S. Department of Health and Human Services:
A vape is sometimes called an e-cigarette, vape pen, e-hookah, or mod. All of these names refer to an electronic tobacco product. Vapes typically have a liquid that is heated to create an aerosol, which the user inhales. Vapes can contain high amounts of nicotine, which is harmful to your brain and can cause addiction.1
Under Texas law, “E-cigarette” means:
- an electronic cigarette or any other device;
- that simulates smoking by using a mechanical heating element, battery, or electronic circuit;
- to deliver nicotine or other substances to the individual inhaling from the device; or a consumable liquid solution or other material aerosolized or vaporized during the use of an electronic cigarette …2
It does not mean a prescription medical device unrelated to the cessation of smoking. You can also find these definitions in your school district’s policy FNCD (legal).
In addition to tobacco and highly addictive nicotine, the U.S. Department of Health and Human Services says that vapes contain poisons such as formaldehyde, acrolein, and toxic metals like chromium, nickel, and lead, all of which can cause permanent lung damage and cancer.3 Vapes are designed to look like ordinary devices, such as pens, lipstick, and USB drives, in order to fool parents, you, and your staff.
Vaping and Young People
Okay, we get it, vapes are really bad, but we have a lot of work to do to convince young people. In 2023, the C.D.C. reported that 2.1 million students (7.7%) currently vaped. Of those, 550,000 (4.6%) were middle schoolers, and 1.56 million (10%) were high schoolers.4 Texas law already bans the use of e-cigarettes at school or at school functions. “A [school] board shall prohibit students from … possessing e-cigarettes or tobacco at school…” (See policy FNCD)
New Student Discipline Laws
The 88th Texas Legislature (2023) made changes to Chapter 37 of the Texas Education Code (the student discipline chapter) that address vaping and schools.
- DAEP REQUIRED: Now, any student who is caught possessing an e-cigarette must be placed in a disciplinary alternative education program, if space is available.
- WHAT IF NO ROOM IN THE DAEP? If space is not available in the DAEP, the student must be placed in in-school suspension, then transferred to a DAEP should space become available during the disciplinary period.
These new laws can be found in Texas Education Code Chapter 37, specifically in sections 37.006, 37.007, and 37.009. You can more readily find this in your school district’s policy FOC (legal). Look under the section that lists the types of school-related conduct that requires placement in a DAEP. Consult a special education expert if a special education student’s violation of this law would result in a DAEP placement of more than 10 days.
New Vape Marketing Laws
In hopes of reducing the number of students (and persons under the age of 30) tempted to use e-cigarettes, the 88th Legislature (2023) also made it illegal to target marketing efforts at minors. It is a Class B misdemeanor (jailable) offense to market vaping products using cartoon-like images, celebrities, food, candy or juice images, or other symbols usually used to promote a product to minors. Also, anyone under 30 must present a proper ID to buy vaping products.5
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1The U.S. Dept. of Health and Human Services, “The Real Cost – What is a Vape?” 2024, https://therealcost.betobaccofree.hhs.gov/vapes/faq. Texas law defines e-cigarettes similarly.
2Tex. Health and Safety Code Sec. 161.081 (1-a)
3Id.
4The Center for Disease Control, “E-Cigarette Use Among Youth” May 15, 2024, https://www.cdc.gov/tobacco/e-cigarettes/youth.html
5Tex. Health and Safety Code Sec. 161.083
TEPSA News, August 2024, Vol 81, No 4
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Note: Information from Legal Ease is believed to be correct upon publication but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
