Extending the no-smoking law to e-cigs is legal, says NYC judge

denied - Mikko Luntiala

A challenge to New York City’s ban on using e-cigarettes in public places has been denied by a Manhattan supreme court judge.

The case, initiated by local smokers’ rights group NYC C.L.A.S.H. (New York City Citizens Lobbying Against Smoker Harassment), was based on an article in the state of New York’s constitution that prohibits a single law from dealing with two subjects.

The group argued that as e-cigarettes are distinct from conventional cigarettes, amending existing tobacco legislation to include e-cigarettes in the ban on smoking in public places – which covers bars, restaurants, government buildings and other locations such as parks – created a dual-subject law.

But judge Frank Nervo disagreed. “At best, this argument raises a distinction without a difference,” Nervo wrote, according to the New York Law Journal. “Local Law 152 [the law governing smoking and now vaping in public places] does not become invalid merely because a cigarette is ignited by fire and an e-cigarette is ignited electronically.”

The idea behind the constitutional article was to prevent “log-rolling” – concealing one legislative act within another. Yet that was not the case here, Nervo decided; cigarettes and e-cigs are similar enough in the eyes of the law and the amendment does not conceal unrelated matters.

NYC C.L.A.S.H. had said it was confident of a positive result when it filed its challenge, and predicted that the enactment of e-cigarette-specific legislation – which would have been necessary if its case had succeeded – would result in a wider backlash against government legislating against personal behaviour.

Audrey Silk, founder of NYC C.L.A.S.H. told ECigIntelligence that the group felt the court had completely failed to grasp the merits of their argument. An appeal to the decision was planned, Silk added.

What This Means: Superficially this may sound like a failure for e-cigarette proponents, so it probably will be greeted with sourness in the industry. But it is a technical challenge based on an unusual provision of the New York constitution: at issue was not whether public vaping should be permitted, but whether it was permissible to include it in a smoking ban.

Even if the court had sided with NYC C.L.A.S.H., that would not have prevented the enactment of a separate prohibition on public vaping. This is something that ECigIntelligence believes to be inevitable in many jurisidictions – and something the industry is going to have to work around.

– Freddie Dawson ECigIntelligence staff

Photo: Mikko Luntiala

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