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  • Writer's pictureLeslie A. Farber

Is Secondhand Exposure to Marijuana Smoke a Crime?

man sitting on his bed using his laptop and smoking pot

As more states legalize marijuana for recreational or medical use, the effectiveness of current smokefree protections for non-users is being called into question.

Like other forms of smoking or vaping, marijuana is unsafe compared to breathing clean air. According to the U.S. Centers for Disease Control and Prevention, marijuana smoke contains many of the same cancer-causing chemicals found in tobacco smoke, some in higher amounts. Marijuana smoke also contains tetrahydrocannabinol, or THC, the compound that creates the “high.” THC can be passed to infants and children through secondhand marijuana smoke, putting them potentially at risk for negative health effects that the CDC says require more research.

In states that have legalized the recreational use of cannabis, residents are not necessarily free to smoke in public. As of January, 2023, 890 localities and 38 states, territories, and commonwealths restrict marijuana use in some or all smokefree spaces. Of these, 478 localities and 23 states, territories, and commonwealths prohibit smoking and vaping of recreational and medical marijuana in venues such as non-hospitality workplaces, restaurants, bars, and/or gambling facilities.

A few states, including New Jersey, allow licensed cannabis retailers to have an on-site consumption lounge in an enclosed area subject to city approval. In New York, which legalized the sale, purchase, and on-site consumption of marijuana in 2021, regulations for consumption lounges are being developed but are not yet in effect. However, allowing indoor marijuana smoking and vaping weakens smokefree workplace protections for employees, and it can potentially expose people to drifting secondhand smoke if the retailer is located in a mixed-use building.

In many cases, these restrictions leave marijuana users only one legal option: to smoke at home. This is creating a growing concern in apartment and condominium buildings, where residents may be subject to breathing their neighbors’ secondhand emissions.

According to New York’s Office of Cannabis Management, “the smoking of

cannabis is prohibited anywhere smoking tobacco is prohibited.” A landlord cannot refuse to rent to a tenant who uses cannabis, but landlords, property owners and rental companies can still ban the use of cannabis on their premises. However, residents who move into a building with a smokefree policy may soon become frustrated with the landlord’s inability to enforce it.

Many housing providers cannot take action on a drifting smoke complaint unless they catch the person in the act of smoking. In addition, landlords have to be mindful of tenants who are licensed for medical marijuana use. They have the same protection to smoke as non-users have from secondhand smoke.

Progress is being made in expanding smokefree living environments. For example, cities and counties are adopting local laws requiring all multi-unit housing to be smokefree. Nearly 70 communities in California require all rental apartments and condominiums to be 100% smokefree indoors. In addition, a federal rule requires all public housing properties to be smokefree. However, to be truly effective, smokefree building policies or local laws must prohibit people from smoking or vaping any substance inside the building, on balconies and patios, and near windows and doorways.

For tenants advocating for their right to live smoke-free, the first option may be to try to resolve the issue directly with their neighbor. If this approach fails, they might ask the landlord or building manager to mediate the dispute. Many landlords are making decisions on a case-by-case basis, allowing tenants to smoke on balconies, installing special air filters, or moving non-smoking tenants to other units within the building.

If the issue is still not resolved, one can consider suing on the grounds that the smoke is a private nuisance. But if marijuana use is legal, being offended by a neighbor’s smoke will likely not be enough to support a nuisance claim: one needs to show that it has caused harm. Courts will weigh the health risks against the rights of the smoker.

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances

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