HUD Smoke-Free Rule Challenged in Court

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On July 23, a pro-smoking organization and several residents of public housing filed a lawsuit against the U.S. Department of Housing and Urban Development (HUD).  Their lawsuit is challenging HUD’s authority to require all public housing to be smoke-free.

HUD issued the smoke-free rule on November 30, 2016.  The rule requires all public housing to have a smoke-free policy in effect by July 31.  The smoke-free policy must prohibit smoking in all indoor areas, including dwelling units, and within 25 feet of all indoor areas. The rule does not prohibit the use of electronic cigarettes, and it does not apply to dwelling units in mixed-finance projects, housing assisted under Section 8, PHA properties that have converted to project-based rental assistance contracts under the Rental Assistance Demonstration Program, or tribal housing.

The lawsuit was filed by New York City Citizens Lobbying Against Smoker Harassment (NYC C.L.A.S.H.). In the complaint, NYC C.L.A.S.H. describes itself as a “non-profit smokers’ rights organization dedicated to protecting the interests of adults who choose to smoke.”  Although NYC C.L.A.S.H. has filed several lawsuits against smoke-free laws, most – if not all – of these lawsuits have been unsuccessful.1

NYC C.L.A.S.H. raised several claims against the smoke-free rule.  NYC C.L.A.S.H. argued first that the smoke-free rule violates the Tenth Amendment because a federal agency is directing state action. The organization asserted various constitutional claims based on the potential for home searches and claimed that HUD lacks jurisdiction to issue the smoke-free rule. Finally, NYC C.L.A.S.H. argued that the smoke-free rule is arbitrary and capricious, in part because of what it describes as “the scientifically dubious notion that the tobacco product emissions produced by public housing tenants using tobacco products within their private living quarters poses a health risk to tenants living in other apartments.”

Once all government parties have been properly served with the complaint – a process that could take up to a few weeks – the government has sixty days to answer the complaint.  The lawsuit does not ask the court for any type of relief that would immediately halt the implementation and enforcement of the smoke-free rule, so the rule will go into effect on July 31.  The Public Health Law Center will continue to monitor the litigation.  For more information about HUD’s smoke-free rule, please visit the smoke-free public housing portion of our web page.

 

1 See, e.g., NYC C.L.A.S.H., Inc. v. New York State Office of Parks, Recreation and Historic Preservation, 51 N.E.3d 512 (N.Y. 2016) (upholding agency rule restricting smoking in state parks), NYC C.L.A.S.H. v. City of New York, 315 F.Supp.2d 461 (S.D.N.Y. 2004) (rejecting constitutional claims against state and city smoke-free laws), NYC C.L.A.S.H. v. City of New York, 147 A.D.3d 97 (N.Y.Sup.Ct.App.Div. 2017) (rejecting single-subject challenge to law regulating use of electronic cigarettes).