Allowing smoking in cannabis lounges would violate Clean Indoor Air Act

This opinion column was submitted by Sean McCoy, an award-winning legislative analyst and founder of Silver Mountain Law where he focuses on legislative and family law consulting. 

Take a breath. Take a deep breath.  

Whether you inhale or not, in a state with legalized recreational marijuana, it’s reasonable to expect to find places to consume marijuana publicly. For now, that place is not Washoe County.

Last month, the Planning Commission rejected a proposal to allow public consumption of cannabis in licensed lounges. What wasn’t discussed is the fact that the proposal violates the Nevada Clean Indoor Air Act.

Approved by a majority of voters in 2006, the NCIAA has significantly reduced tobacco use in Nevada, and the harmful effects of secondhand smoke, through denormalization. With very few exceptions, the NCIAA explicitly prohibits smoking in any form inside places of employment.

In 2021, the Nevada Legislature authorized cannabis consumption lounges. They did not, however, expand the indoor smoking exceptions in the NCIAA.

To smoke marijuana in a cannabis consumption lounge, the establishment must fall under one of the limited exceptions authorizing indoor smoking. Those exceptions are places like casinos, bars, retail tobacco stores and trade shows, strip clubs, and brothels. As alcohol, tobacco and gaming are prohibited in cannabis consumption lounges, the existing exceptions do not apply.

Currently, the NCIAA defines “smoking” as “inhaling, exhaling, burning or carrying any liquid or heated cigar, cigarette or pipe or any other lighted or heated tobacco or plant product intended for inhalation, in any manner or in any form.” Read that again. The definition of “smoking” is not limited to tobacco. It includes any “plant product intended for inhalation.” That includes cannabis because Nevada law defines “cannabis” as having the same meaning as “marijuana” which in turn is defined as the parts of any plant of the genus Cannabis.

Also problematic is the fact that the NCIAA prohibits smoking inside restaurants. The NCIAA generally defines “restaurant” as a business which gives or offers for sale food to the public, guests or employees. This is relevant because one of the key reasons for authorizing cannabis consumption lounges is the opportunity to sell cannabis-infused food.

Therefore, “smoking” of any plant is prohibited in cannabis consumption lounges — Either because they are a non-exempt place of employment or because they are a restaurant. Nothing in the newly adopted cannabis law or regulations changes that. In fact, the Nevada Cannabis Compliance Regulations state that nothing contained in the regulations shall be construed as to conflict with any other applicable statute.

Likewise, the statutory authorization of cannabis consumption lounges is not mandatory. Local governments have the discretion to decide whether to allow cannabis consumption lounges or not. This is important in Washoe County because the Health District is responsible for enforcing violations of the NCIAA. Violations that the County Commissioners are being asked to authorize.

In short, the NCIAA controls. All cannabis consumption lounges must be smoke-free.

Unlike the NCIAA, a majority of voters did not authorize cannabis consumption lounges. Given research has shown that secondhand marijuana smoke can be worse than tobacco, our community deserves the rights and protections offered by the NCIAA until those rights are properly amended.

Fortunately, the solution does not require reinventing the wheel. The state of Illinois solved this riddle by adding an exception to their clean indoor air law that allows smoking marijuana in cannabis consumption lounges. Nevada could consider this during its next legislative session beginning on Feb. 6, 2023.

The appeal of the Planning Commission’s decision will be heard by the Washoe County Board of Commissioners on Tuesday, Jan. 17. The Board should either wait until the issue is resolved at the state level or ensure anything they approve specifically adheres to the NCIAA. 

Sean McCoy is an award-winning legislative analyst and founder of Silver Mountain Law where he focuses on legislative and family law consulting. 

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