Before leaving office, New York Mayor Michael Bloomberg championed a law that would treat electronic cigarettes like tobacco smoke under the city’s “Smoke Free Air Act.” The law, which the city council passed in a 43-8 vote, prohibits electronic cigarette use in public places like bars, subways and parks. REcently a group have dedicated vapers have joined together to challenge New York City’s e cig ban in court.
Proponents of the law argue that electronic cigarettes “normalize” smoking because many people can’t tell the difference between tobacco cigarettes and electronic cigarettes. Robin Vitale, speaking for the American Heart Association, commented, “This mimicry of traditional cigarettes, if used indoors where smoking is banned, can easily lead to confusion and confrontation by New York business owners. The potential for this dynamic to weaken the city’s decade-long ban on smoking in workplaces is quite clear and is the greatest motivating factor to support this proposal.”
Though opponents of the ban weren’t able to prevent its passage by the NY city council, they’re taking their fight to the judicial system. In a complaint filed in State Supreme Court Tuesday, smokers’ rights group NYC Citizens Lobbying Against Smoker Harassment, (NYC-C.L.A.S.H.) contend that the e-cigarette ban violates the “one subject” rule of the city charter.
New York’s constitution states that laws must address only one subject, and that that subject must be reflected in the law’s title.
CLASH argues that electronic cigarettes produce vapor, not smoke, and are therefore a “second subject” of the city’s “Smoke Free Air Act.”
The complaint has three clauses of action. Initially, CLASH asks the court to declare that the law is unconstitutional because it adds a second subject to the SFAA. Next, CLASH seeks to have the court rule that the law cannot be implemented due to the fact it is unconstitutional. Finally, CLASH is asking the court to permanently enjoin the Defendants from implementing or enforcing the law.
While it may seem like a semantic argument, it does underscore a major contention of the pro-vaping community. Namely, that while electronic cigarettes may mimic certain elements of traditional tobacco cigarettes, their ingredients and mechanism of action are radically different.
Russ Wishtart, a vaping advocate, joined CLASH in filing the suit. Mr. Wishtart contends that the vaping ban was tacked on to the smoking ban in order to make it easier to pass, avoiding the debate over health impacts and electronic cigarette’s potential as smoking cessation aids.
While opponents of electronic cigarettes argue that they are a “gateway” product that normalizes smoking and could lead to smoking tobacco cigarettes, proponents argue that electronic cigarettes are an extremely effective smoking cessation aid.
Currently, electronic cigarettes are not regulated by the FDA, though the agency is expected to release regulation recommendations later this year.
In the absence of federal regulation or definitive scientific studies, the two sides in the electronic cigarettes debate continue to clash at the local level as more cities follow New York’s example and move to prohibit electronic cigarettes.
For now, all eyes are turned to New York’s State Supreme Court. Its ruling will be the first major judicial opinion on the subject of electronic cigarettes, and will likely influence other legal opinions.
The State Supreme Court has yet to set a date for arguments.