Drifting smoke from another unit in your apartment building is a nuisance and can cause illness. Smokers are not a protected legal class, there is not a “right to smoke” under any U.S. law.15 Fortunately smoke free policies in apartments or other residential rental properties are legal under federal and state law and existing laws protect your rights to a smoke free apartment.16 The Tobacco Control Legal Consortium has several publications related to secondhand smoke in multi-unit properties including There is no Constitutional Right to Smoke and Regulating Smoking in Multi-Unit Housing.
Federal laws that may help protect tenants effected by secondhand smoke include the Americans with Disabilities Act, the Federal Rehabilitation Act and the Federal Fair Housing Act. If a resident has a health condition considered to be a disability and the condition is worsened by exposure to secondhand smoke, the resident may be able to request a "reasonable accommodation" to reduce or eliminate exposure to secondhand smoke.17 The Fair Housing Act states that if a person has a breathing problem and a statement from their doctor; management is required to move the person smoking to another unit to accommodate the person with the disability.18
Review your lease to find out if it already contains provisions that could be used to alleviate exposure to secondhand smoke, such as a ‘nuisance clause’ often included to protect residents from loud music.