Smokers’ Rights Group Challenges HUD’s Smoke-Free Rule

In May, a smokers’ rights organization filed an appeal in the latest in a line of court decisions rejecting constitutional challenges to HUD’s regulation banning smoking in public housing.

HUD’s Smoke-Free Rule bans the use of all lit tobacco products, including cigarettes, cigars, pipes, and waterpipes (but not electronic cigarettes). The ban applies to all public housing units and interior areas, as well as outdoor areas within 25 feet of public housing and administrative offices. HUD’s stated purpose for the rule was four-fold:

• To improve indoor air quality in the housing;
• To benefit the health of public housing residents, visitors, and staff;
• To reduce the risk of catastrophic fires; and
• To lower overall maintenance costs.

The rule applies to not only all future PHA leases, but also current leases by required amendment. A resident’s failure to comply with the lease, including the smoke-free rule, could lead to termination of the tenancy and eviction. All PHAs were required to be in full compliance with the rule by July 30, 2018.

In March 2020, the court in the District of Columbia granted HUD judgment without a trial in a case filed by the smokers’ rights organization, challenging HUD’s regulation banning smoking in public housing, including individual residential units. The court rejected the organization’s claim that the rule interfered with residents’ fundamental right to engage in legal activity in the privacy of their homes, because smoking in one’s home isn’t protected by the right to privacy. The rule satisfies constitutional requirements because it’s rationally related to legitimate governmental interests—to create safe housing conditions and remedy the shortage of safe homes for low-income families [NYC C.L.A.S.H. v. Carson, District of Columbia, March 2020; appeal filed May 8, 2020].