California Smoking Laws

California has sunshine and beaches enough to win a spot on most people's list of great places to live or visit. But smokers in California have more to consider: The state's public health laws restricting tobacco use are some of the nation's most restrictive, including limitations on buying, selling and using tobacco. And, despite the state's recent legalization of recreational marijuana, its use can be, and often is, prohibited in the workplace, in public and in some living spaces. To avoid fines or citations, it's important to get an overview of the laws before lighting up anywhere in California.

As the old adage goes: As California goes, so goes the country. And this has proved true in terms of laws restricting the sale and use of tobacco products. This began some time ago, but well after the first information was released about the cancer-producing effects of smoking and the detriment suffered when people, especially children, are exposed to second-hand smoke.

The first official report on the adverse health effects of smoking was published by the surgeon general in 1964. This resulted in federal law called the Cigarette Labeling and Advertising Act of 1965 that mandated health warnings on cigarette packages, and the 1969 law that banned cigarette advertising on television and radio. A few years later, the surgeon general released another report outlining the potential adverse effects of second-hand tobacco smoke. The federal government followed up in the 1970s with restrictions on smoking in public places, government buildings and on airplanes.

California was among the first states to restrict smoking. The California Indoor Clean Air Act was passed in 1976, declaring that tobacco smoke was a hazard to the health of the general public. It limited smoking in public areas and mandated nonsmoking areas in hospitals, restaurants and bars, while expressly giving municipalities and businesses the right to further limit tobacco use. In the same year, the California nonprofit Group Against Smoking Pollution (GASP) was founded to lobby against tobacco use. It evolved into the influential national group, Americans for Nonsmokers’ Rights.

Berkeley, California, was the first city to outlaw smoking in restaurants, followed by Los Angeles and San Francisco. In 1995, California became the first state to pass comprehensive anti-smoking legislation that prohibited tobacco use in most workplaces. A few years later, state law took effect barring smoking in most bars.

Under the California Labor Code and Section 5148 of the California Code of Regulations, it is illegal for any individual to smoke tobacco products in an enclosed workplace. Regulation 5148(a) provides: "No employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment."

Employers are required to prohibit both employees and customers from smoking. This state law does not allow any flexibility or exemptions, and municipalities cannot make contrary rules. Workplace smoking laws apply to all workplaces with more than five employees.

What is an enclosed workplace? Under California law, the term is defined to mean any and all indoor areas where people work. This includes not just the office or factory space in which work is done, but also any areas that are part of the same building, like lobbies, lounges, waiting areas, elevators, stairwells and bathrooms.

However, an employer can designate a particular area as a smoking area as long as it is enclosed and properly ventilated, that is, the air is pumped directly outside. It should not be an area where any employees need to go as part of their job duties.

Since almost every public or private building in which a person might wish to smoke are also places of employment for those who work there, including bars, cafes, restaurants and movie theaters, this law constitutes a virtual ban on smoking in all commercial spaces.

The California smoking ban law is quite comprehensive in its coverage, but it does lay out some exceptions. These allow long-term health care facilities to set aside a smoking area for patients. They also permit smoking in theaters on stage where it is essential to the story, and smoking in medical research sites where the research involves smoking.

What about hotels and motels? The areas of hotels and motels that are accessed only by employees as well as areas like lobbies, meeting rooms and banquet rooms considered to be common to all guests must be nonsmoking areas. At least 80 percent of hotel guest rooms must be also be smoke free.

California permits tobacco smoking in tobacco shops. It is also permitted in private smokers’ lounges as long as the smoking area is enclosed or attached to a retail or wholesale tobacco shop. And American Indigenous tribes are sovereign entities under federal law. Therefore, tribal lands are not impacted by state laws that prohibit smoking in indoor spaces. The tribes are free to impose their own smoking bans and many have done so in tribal gaming casinos and also throughout their lands.

A home may be a person's castle, but that does not necessarily mean that they have freedom to smoke there. California attempts to protect nonsmokers from breathing cigarette smoke by regulating smoking in multi-unit buildings, including apartments, tenants in common and condominiums.

In these types of buildings, both smokers and nonsmokers may be using the indoor common areas. For that reason, smoking is banned, including in all hallways, stairwells, laundry rooms and recreation rooms. And a landlord is perfectly within their rights in California to make all unites they own or manage smoke free.

California bans smoking in most public areas statewide. For example, smoking is banned:

• On public transportation.
• In all state, county and city government buildings, including California community college district buildings.
  
• Within 20 feet from the main exits, entrances or operable windows of government buildings.

• In all state parks and state coastal beaches.

• In all foster homes or group homes.

• In licensed day care areas, including private homes used for day care.
  
• In all state correctional facilities (along with tobacco products) other than by residential staff living quarters when no inmates are present.
  
• Along with tobacco products within 25 feet of a playground or other recreational area specifically designed for children.

• In all schools, school district buildings, charter schools and county offices of education while students are present, whether attending school or school-sponsored activities.

• Near farmers' markets.
  

• In private vehicles, moving or not, when a child under the age of 21 is in the car.

Note that, in California, these laws apply not just to regular cigarettes, but also to e-cigarettes and vapes.

In many instances, state law gives California cities the right to impose their own anti-smoking, and many of them do. Local jurisdictions have adopted many anti-smoking laws that are even stronger than state laws, so if anyone is unsure of a city ordinance, they would do well to ask. Municipalities and counties control many of California’s outdoor spaces, including parks and beaches, and most of these are covered by laws banning smoking.

There are comprehensive second-hand smoke laws in place in over one hundred cities and counties in California. These laws forbid people from lighting up a cigarette in outdoor dining areas, at concerts and county fairs, and in other outdoor recreational areas and worksites. Even smoking on sidewalks is sometimes prohibited. It is very common to see local ordinances that prohibit smoking in front of buildings or in ATM lines, public bus stops, taxi lines and in front of ticket purchase booths.

For many years, the government has prohibited the sale of tobacco products to persons under 18 years of age. This age limit was raised to 21 in California in 2016 with an exception for minors serving in the military who were allowed to purchase tobacco products upon proof of military status. However, in 2019, this exemption was removed; the same exemption was also removed from federal law. Now, both federal and state laws provide for a comprehensive ban on selling tobacco products to anyone under the age of 21. This Tobacco 21 law includes e-cigarettes.

Not only do the tobacco laws prohibit a person under 21 from buying cigarettes, it is also illegal for retailers to sell cigarettes to a person who appears to be a minor. Tobacco retailers must be licensed by the state and are obliged to post signs at each point of purchase setting out the prohibition on selling tobacco products to minors. This age-of-sale sign must meet state law requirements, including the exact wording, the font size of the lettering and the size of the sign. Retailers are obliged to ask for identification with the age of any purchaser who appears to be underage, and this requirement must also be part of the signage.

Most marijuana smokers are aware that, as of 2018, it became legal for adults to purchase and use recreational marijuana in California. Even before that, it was legal for people to use marijuana for medical purposes when ordered by a doctor or dispensary. However, this does not mean that the state permits marijuana smokers to light up anywhere they like. Smoking marijuana is illegal in many contexts.

California’s legalization of marijuana notwithstanding, it is always illegal in the state for someone to use marijuana in a public place. In addition, it is illegal to smoke marijuana anywhere tobacco smoking is prohibited, including in enclosed workplaces, and the state gives employers the absolute right to maintain a drug and alcohol-free workplace. Employers can prohibit the use of any marijuana product by their employees while they are on the job, and it is legal for them to require testing to make sure this prohibition is being respected.

Note that the use of marijuana can remain detectable in a person's urine for up to a week, even if the person only smoked once. And those who smoke regularly have been known to test positive after more than three months.