Gerald Allen recalls sitting in the stands at a junior varsity football game about two years ago, when someone seated to his right began vaping.

“The downwind was catching me, so I told him, ‘You need to go outside the stadium to do that,’” Allen said, recalling the story recently with AL.com. “He said, ‘it’s not smoking, it’s vaping,’ and that ‘it’s not against the law for me to do this.’”

He was right. In Alabama, unless a municipality has passed an ordinance prohibiting vaping in specific places, it’s permissible to light up an electronic cigarette or use any alternative nicotine products in public places.

Allen, a Republican state senator from Tuscaloosa and among the more conservative lawmakers in the Alabama legislature, wants the state to ban the use of e-cigarettes and other vaping products in public places, similar to restrictions on cigarette smoking. Legislation that Allen sponsored last session will return for reconsideration next spring, while a bipartisan group of lawmakers continue to look for additional ways to regulate the industry.

Including electronic nicotine delivery systems into the list of items banned under the state’s 21-year-old Clean Air Act is the main purpose of Allen’s SB10, pre-filed last month. The other aspect of his bill is to rename the Clean Air Act after Democratic Sen. Vivian Figures of Mobile, who played an instrumental role in getting it approved two decades ago to ban cigarette smoking in public venues.

Alabama was the last state to adopt a statewide Clean Air Act in 2003. But if lawmakers press forward and bans e-cigarettes from public places, Alabama could be in a minority of states to do so. According to the American Lung Association, 19 states including the District of Columbia added e-cigarettes to their comprehensive smoking bans.

“We are going to update the code to add vaping and those type of products into the code so you cannot do that in public places,” Allen said.

Bipartisan battle

The senator has the support of anti-tobacco groups and Democratic lawmakers who often find themselves in animated disagreements with Allen over public policy. For instance, Democratic lawmakers continued to raise concerns over the strict protections of Confederate monuments under the Alabama Memorial Preservation Act, which Allen sponsored in 2016. He has also backed strict anti-abortion measures and was the sponsor of an eventual constitution banning “foreign law.”

But by battling vaping, he has strong support among Democratic colleagues.

“Anything we can do to ban these devices, I think would be quite helpful to the safety of our constituents and the public,” said State Rep. Barbara Drummond, D-Mobile. “These devices are horrible as it relates to health.”

Figures said she can support Allen’s bill as its written, saying it’s a matter of fairness.

“Why should they be able to smoke their things, but other people cannot smoke cigarettes (in public places),” she said. “It’s like invading someone’s privacy and putting something not healthy out there for them to (breathe in) involuntarily. That was the basis for me making Alabama smoke free. I had bronchitis that I had gotten in college, and I knew what the effects were being around someone who smoked.”

Vaping backlash

The legislation will likely face pushback by the vaping industry, which has battled Drummond and Figures on bills in recent years that would regulate the industry.

“It would be a mistake for Alabama to redefine the word ‘smoking’ to include the use of smokefree vaping products,” said Gregroy Conley, director of legislative & external affairs with the New Jersey-based American Vapor Manufacturers. “These products are a lifeline for many adult smokers in a state with one of the highest smoking rates in the country. Absent evidence of harm to bystanders, it should be up to private business owners to decide whether to allow these products on their premises, not the nanny state.”

Indeed, Alabama continues to rank at or near the bottom on smoking statistics, and the state’s smokefree air law received an “F” grade in the latest “State of Tobacco Control” report by the American Lung Association.

The failing grade recognizes that Alabama’s smokefree air law does not provide adequate protections for all residents and includes loopholes that allows smoking inside bars.

An analysis five years ago by the U.S. Centers for Disease Control and Prevention showed that 20.2 percent of Alabamians smoke cigarettes, which ranks among the highest rates in the country.

But the state also ranks high among those who use e-cigarettes, and industry critics say there simply is not enough knowledge by the public on the long-term health effects of alternative nicotine products.

According to a Forbes analysis from April, Alabama ranked sixth highest for those who use e-cigarettes the most and was No. 1 among adults who reported vaping “some days.”

The percentage of those using e-cigarettes increased from 2016-2022, the report showed. Between 2016 to 2022, the percentage of adults in Alabama who use e-cigarettes was up by 5.3 percentage points, ranking No. 3 among all states.

Virginia Guy, executive director of the Mobile-based Drug Education Council, said while studies showing the effects of second-hand vaping are “relatively new,” she said there is “ample research” to suggest breathing and respiratory problems for people who don’t vape themselves, but who are around people who do.

She also noted that vapes containing aerosols include harmful materials and cancer-causing substances.

“If someone else is vaping in the same area as you, those particles are in the air you are breathing, too,” Guy said.

Regulatory movement

Anti-tobacco groups are also on Allen’s side, despite butting heads with Figures and Drummond over their measures in recent years. The American Lung and Heart associations have fought the Democratic lawmakers over Alabama’s proposed vaping regulations out of concerns that additional roadblocks to smoking cessation would be a windfall for “Big Tobacco.”

Lizzi Willicott, executive director with the American Heart Association and Ashley Lyerly, senior director of advocacy at the American Lung Association, said they support efforts to strengthen the state’s smokefree law that include adding e-cigarettes to the list of items from being used in public places.

“We appreciate the work of Senator Gerald Allen to add the use of e-cigarettes to the state’s current law,” Lyerly said. “The Lung Association looks forward to working with Senator Allen and the Alabama Legislature to strengthen Senate Bill 10 to ensure all workplaces and public places benefit from smokefree air.”

Alabama lawmakers have taken steps toward cracking down on e-cigarette use in recent years. Lawmakers, in 2023, passed a bill prohibiting smoking and vaping while inside a vehicle with a child under age 14. Violators face fines up to $100.

In 2021, lawmakers raised the age to purchase tobacco products – including vaping devices and e-cigarettes – from 18 to 21.

A host of schools have also imposed their own restrictions on vaping at a time when close to 19 percent of high school teens in the state report using vape products. Some of those efforts coincided with the scare that emerged last year with the growth of illicit fentanyl use.

Absent a state law, a host of cities have adopted ordinances – most of them occurring 10-12 years ago – cracking down on e-cigarettes use in public places.

Daphne, in 2014, banned the use of e-cigarettes and other vaping products inside city vehicles and buildings like the public library and civic center. Also in 2014, Foley adopted a vaping ban at city-owned facilities, public places of employment, and outdoor arenas and stadiums. The Foley ordinance allows vaping and traditional smoking within a “reasonable distance of 15 linear feet” from main entrances and exists to enclosed areas.

Other cities in the state with vaping restrictions or bans include, among other places, Opelika, Madison, Vestavia Hills, Troy, Bessemer, Homewood, Gadsden, and Creola.

Allen said he plans to introduce his measure early in the spring legislative session, acknowledging that it failed to pass out of the Alabama House in the final days of the 2024 legislative session that was dominated with a focus on a gambling package that did not win approval.

“Vaping is really dangerous,” Allen said. “The public may not really understand how dangerous it is and how it affects your health, long-term.”