In depth: New York state e-cig regulation, December 2014

New York state capitol - JvL 300x180

CONTENTS

 

 

Executive summary

 

  • New York state law prohibits the sale of e-cigarettes to minors, but there is no state or federal law that otherwise regulates them in the state.
  • The New York e-cigarette market is primarily regulated on a local level by zoning laws and public use ordinances.
  • Five municipal governments restrict the use of e-cigarettes in smoke-free locations, while the State University of New York (SUNY) system prohibits their use on campus.
  • ECigIntelligence believes the sale and use of e-cigarettes in New York will be regulated on a local or quasi-governmental level for the foreseeable future.
  • Please note: all references to “New York” in this report are to the state, unless the city of the same name is specifically indicated.

 

Introduction

 

The U.S. may have the most complex set of e-cigarette regulatory regimes in the world.

The federal Food and Drug Administration (FDA) in April 2014 proposed “deeming regulations” that, if adopted, would put e-cigarettes in the same category as tobacco products. This would subject them to an onerous layer of federal e-cigarette regulation, which will sit on top of regulations continuing to emerge at a state and municipal level. However, ECigIntelligence anticipates that it will be one to three years before the FDA finalises any such rules.

Meanwhile, the state of New York has not considered legislation that would regulate e-cigarettes in the same manner as tobacco products. The political will to regulate e-cigarettes at the State level does not appear to exist at this time. However, both federal and state consumer protection laws affect the e-cigarette industry and offer protection for consumer rights.

Thousands of local governments in New York have regulatory authority over e-cigs. Although only a small percentage of these bodies have enacted legislation, they include significant cities where millions of people reside and work, including New York City and Buffalo.

Other local governments are increasingly looking at regulating e-cigs, with measures that control – among other things – the places where they can be used, such as workplaces, bars, restaurants, and even parks, beaches, and outdoor dining areas.

Quasi-governmental institutions, such as state-funded colleges and school districts, also regulate use. New York’s state-funded colleges have substantial student bodies and significant staff numbers; some of these institutions are effectively the size of small cities and regulate activity on their campuses, including the use of e-cigs. Although such institutions are not exempt from local, state, or federal laws, any analysis of regulation in New York is incomplete without considering the effect of such regimes.

This report will consider legislation at the state level, followed by regulation at the local and quasi-governmental levels, and then will identify e-cigarette regulatory trends in this trendsetting state.

 

The matrix of authority

 

New York state has the 16th-largest economy in the world, and nearly 20m inhabitants.

Matrix of e-cig regulatory authority in New York

Governing body Tax Restricted use             e.g. public   places Marketing –TV ads Marketing – price, e.g. free samples Marketing –other Age restriction Zoning
(how/where sales are permitted)
Prohibition                   of sale
State legislature NE NE NE NE NE Y N NE
Any county government RR RR N RR RR RR RR RR
Any municipal government RR RR N RR RR RR RR RR

NE = not exercised, N = no right to regulate, Y = yes, regulated, RR = right to regulate

 

 

State government regulation

 

New York has enacted statewide regulation that prohibits the sale of e-cigs to minors, the Adolescent Tobacco Use Prevention Act (ATUPA).

But attempts to regulate e-cigarettes more heavily at state level have stalled. In May 2013 a bill was introduced in the New York State Assembly seeking to amend definitions relating to tobacco products. Although e-cigs are not specifically mentioned, a strict interpretation of the language in the bill would classify them as tobacco products, which are subject to the statewide 95% wholesale tax.

If the bill is passed, e-cig retailers will need to obtain a tobacco retail licence in accordance with New York tax law. However, although it was referred to the assembly’s health committee for consideration in May 2013 and again in January 2014, there have been no votes on this bill. This probably indicates there is currently no political will to regulate e-cigs at state level.

Although state law barely regulates e-cigs, New York state’s consumer laws do offer protection. The Division of Consumer Protection, a cabinet-level agency, enforces consumer protection laws to prevent deceptive business practices, protect the public health, and ensure a fair marketplace.

Further protection is provided by the regulations of New York City. Created in 1969, the New York City Department of Consumer Affairs (DCA) was the first municipal agency devoted to consumer protection in the U.S. The landmark Consumer Protection Law allows the DCA to protect consumers and professionals through regulation and licensing of “nearly 80,000 businesses in 55 industries”.

Consumer protection laws cover a wide range of issues ranging from advertising to credit transactions to tenant-landlord laws.

In the context of e-cigs, many New York consumer protection laws could be triggered, including complaints of unfair business practices or untrue or misleading advertising. For example, any e-cigarette advertised as a safe alternative to smoking or as a smoking cessation device would be considered misleading and in violation of consumer protection laws because the FDA has not approved such claims.

New York senator Charles Schumer has proposed regulations for e-cig containers, which are not currently required to carry warnings. Schumer believes child-proof safety caps and warning labels are necessary because of the increase in calls to poison control centres related to e-cigs. No further action has been taken on this proposal, however.

 

Local government regulation

 

Municipal governments have regulated e-cig usage in four principal ways: age restrictions, zoning laws, public use laws and licensing laws.

 

Age restrictions

According to ATUPA, the minimum legal sale age for tobacco products in the state of New York is 18.

Other local governments in the state have imposed more restrictive legislation: New York City and Suffolk County have increased the minimum age of purchase to 21, while Nassau and Onondaga counties have raised it to 19.

On 21st October 2014, the Buffalo City Council proposed to amend ordinance 1373 to provide that e-cigs “may not be sold, given or delivered to or possessed or used by minors” regardless of whether they contain nicotine. This would add to the statewide prohibition and could also be considered a public use regulation.

 

Zoning laws

A number of local governments have used zoning laws to restrict e-cig retail locations and decrease their number, or prevent them from opening in a particular zoning areas where under-age persons may be present.

Examples include:

  • Buffalo adopted a moratorium on e-cigarette stores and hookah lounges, pending a safety review (June 2014).
  • Pittsford adopted a six-month moratorium on vapour shops (7th November 2014).

 

Public use laws

To date, only five local governments in New York have restricted the use of e-cigs in places where smoking is also prohibited, compared with 30 Californian municipalities. The definition of “public place” varies from one municipality to another, but important locations affected include restaurants and bars.

The following localities in New York restrict the use of e-cigarettes in public places:

  • From 29th April 2014, New York City restricted the use of e-cigarettes in the same way as conventional cigarettes under its Smoke-Free Air Act. This means vaping is not allowed in bars, restaurants, or any indoor public places in New York City. In the most populous city in the U.S., this law affects over 8.4m people.
  • The Cattaraugus County Legislature in 2011 enacted a law prohibiting the use of e-cigarettes in public places where traditional smoking is banned. This regulation does not restrict the use of e-cigarettes in other workplaces.
  • In 2013 Chautauqua County banned e-cigarette usage on public property, not including “county parks and forest lands, except inside or near roof structures in those areas”.

In the counties of Suffolk and Tompkins, e-cigarettes are banned in all enclosed workplaces, including bars and restaurants.

Erie County, which includes the state capital of Buffalo, is also considering restricting the use of e-cigarettes in the same manner as conventional cigarettes, and many municipalities are contemplating incorporating e-cigarettes into their tobacco regulations.

 

Licensing laws

There are currently no New York licensing laws in effect specifically related to e-cigarettes. The Buffalo Common Council has proposed a resolution that would require a rigorous background investigation before a retailer could open an e-cig outlet. The resolution asks the Buffalo Permits and Inspections Department to require “the stores be reviewed by city inspectors and the Council and that neighbors be notified before” they can open.

 

 

Regulation by quasi-governmental institutions

 

Some New York state bodies that would not normally be considered part of “legislative government” still exercise considerable control over e-cigarettes. The effect of regulation by institutions such as the state-funded State University of New York (SUNY) – with 64 campuses across the state, more than 459,000 students and 89,000 employees – is tremendous.

Currently, tobacco-free policies can only be passed by individual SUNY campuses. For a SUNY-wide tobacco-free policy covering all campuses, New York legislative approval would be required.

At the time of publishing this report, 73% of SUNY state-operated institutions were in some stage of tobacco-free policy implementation, while 10% of SUNY’s state-operated institutions and 30% of SUNY’s community colleges had implemented tobacco-free policies.

However, SUNY intends to pass a tobacco-free resolution “to ban the use of tobacco on all facilities, indoors and out-of-doors, and in vehicles owned, leased or controlled by the State University or its related entities”. Importantly, e-cigarettes are included in the proposed ban, with SUNY saying they should be included because they are not FDA-approved as smoking cessation devices and “contain tobacco”; indeed, the prohibition would cover “any product that looks like a cigarette or is used to inhale [or] smoke” nicotine.

This is not the first time that SUNY has attempted to go tobacco-free across all its campuses. Previously, the following bills have been introduced to committees in the State Assembly, but have not been considered:

  • In 2012, Bill A.10683.
  • In 2013, Bills A.7277 and S. 4853 were introduced and then subsequently amended as A.7277-B and S.4853-B for the 2014 legislative session, where again they were not considered.

SUNY now intends to seek support for legislation in the 2015 session.

Separate e-cig regulation can also apply to schools. If a primary or secondary school is located in an area of a city where e-cigarette use is regulated like that of conventional cigarettes, the use of e-cigarettes is automatically prohibited in that school under the city’s anti-smoking laws.

However, a city’s restrictions do not extend to schools located in unincorporated areas of counties, which must take independent action to restrict the use of e-cigarettes in schools. Independent action may include a ban by the school board and/or the county health department.

In Long Island, the Sewanhaka, Lynbrook, Island Trees, Middle County, Central Islip, and Jericho school districts have enacted their own e-cigarette prohibitions.

 

 

Though there is no statewide e-cigarette ban to match the statewide smoking ban implemented in 2003, local governments are taking action to regulate e-cigs in the same vein as traditional cigarettes by creating new laws to prohibit vaping in public or by rewriting existing smoke-free laws to include e-cigs in the definitions of “smoking” and “tobacco product”.

Local governments are also extending the ban on smoking in public places to include e-cigarettes, which means vaping will no longer be permitted at beaches, parks and airports, on sidewalks, and within enclosed public spaces such as sports venues. There are other regulations in smaller localities too: the town of Lindenhurst has prohibited the use of e-cigs in cars, while Suffolk County has proposed a law to require retailers to list all of the ingredients of liquid nicotine to protect consumers.

In addition, on 18th May 2014 New York City implemented Local Law 94 to raise the legal age for buying e-cigarettes and their components from 18 to 21, in line with the city’s minimum age for tobacco purchase, and requires retailers to post a highly visible sign reflecting the new sales restriction.

The city’s Department of Health notes that penalties for selling e-cigarettes to people under 21 can result in fines of up to $1000 for the first violation, and up to $2000 for a second offence and any subsequent violation within three years. Failure to post a sign can result in fines of up to $500. Section 17-706 of the New York City administrative code was amended to classify e-cigarettes as tobacco products. Local Law 94 will be enforced by the New York City Department of Consumer Affairs.

On 7th October 2014, the New York City Council introduced a bill to limit the sale of flavoured e-cigs to tobacco bars. Menthol is not considered a flavour under this legislation and would therefore still be permitted. The bill’s hearing date has not yet been scheduled. Mayor Bloomberg attempted to introduce a similar bill in 2013, but the bill was withdrawn.

Outside of government regulation, businesses and private property owners may implement voluntary policies to limit the use of e-cigs on their premises. Likewise, employers may restrict employees’ use through workplace policies that prohibit vaping altogether, and landlords may incorporate an anti-vaping provision in tenants’ contracts.

 

 

Appendix 1: state law and New York City law

 

New York Public Health Law, 13-F: section 1399-c 

2 Any person operating a place of business wherein… electronic cigarettes, are sold or offered for sale is prohibited from selling such products… to individuals under 18, and shall post in a conspicuous place a sign upon which there shall be imprinted the following statement: Sale of cigarettes, cigars, chewing tobacco, powdered tobacco, shisha or other tobacco products, herbal cigarettes, electronic cigarettes, rolling papers or smoking paraphernalia, to persons under 18 years of age is prohibited by law. Such a sign shall be printed on a white card in red letters at least one-half inch in height.

4 (a) Any person operating a place of business wherein… electronic cigarettes are sold or offered for sale may perform a transaction scan as a precondition for such purchases.

(b) In any instance where the information deciphered by the transaction scan fails to match the information printed on the driver’s licence or non-driver identification card, or if the transaction scan indicates the information is false or fraudulent, the attempted transaction shall be denied.

(7) No person operating a place of business wherein… electronic cigarettes are sold or offered for sale shall sell, permit to be sold, offer for sale or display for sale any… electronic cigarettes in any manner, unless such products and cigarettes are stored for sale (a) behind a counter in an area accessible only to the personnel of such business, or (b) in a locked container; provided, however, such restriction shall not apply to tobacco businesses, as defined in subdivision eight of section 1,399aa of this article, and to places to which admission is restricted to persons eighteen years of age or older.

 

Consumer protection laws

Consumer rights in the U.S. are protected by federal and state laws. The Federal Trade Commission (FTC), the Consumer Financial Protection Bureau (CFPB), and the U.S. Department of Justice (DOJ) create and enforce federal consumer protection laws. All but four states enumerate the rights of consumers in their respective constitutions. In addition, most states have a department of consumer affairs and many have adopted the Uniform Deceptive Trade Practices Act (UDTPA).

Under New York law, article 22-A protects consumers from deceptive acts and practices. Marketing e-cigarettes as a safe, carcinogen-free, alternative to traditional cigarettes may constitute unfair business practices with respect to sales and marketing in violation of the New York Code, section 350-A.

Claims that that electronic cigarettes are safe and may be used as a treatment for smoking addiction may be considered false and misleading under the New York City Code, title 20, section 20-701.

 

 

Appendix 2: lawsuit – The Citizens Lobbying Against Smoker Harassment vs New York City

 

The Citizens Lobbying Against Smoker Harassment (CLASH) and vaping advocate Russ Wishtart sued the City of New York and the city council to overturn the public ban on e-cigs, which was issued under the City’s Smoke-Free Air Act (SFAA). CLASH alleges the ban is in violation of the constitutional “one subject rule”, which requires legislation to be restricted to one explicit topic, because the sole purpose of the SFAA is to protect citizens from involuntary secondhand smoke exposure.

The complaint argues that the city has not justified the e-cig ban on the premise of secondhand smoke in any way. The Joshpe Law Group, which filed the summons and complaint, explains: “The SFAA now regulates smoke exposure from tobacco smoking, on the one hand, and e-cig use on the other – two distinct subjects in violation of the ‘One Subject Rule.’ For all intents and purposes, Title 17, Chapter 5, of the NYC Administrative Code is now the ‘Smoke Free Air and E-Cig Act’. There are procedural and substantive bounds to the council’s authority that have clearly been exceeded, and this law must be struck down as a result.”

Further, evidence may exist that the city council only backed the ban via the SFAA because members were unable or unwilling to enact a free-standing ban on e-cigs.

– Carly Souther ECigIntelligence staff

 

The author

Carly Souther, legal and regulatory analyst, ECigIntelligence. Carly is a graduate of the Florida State University College of Law and also has a BA in political science from Mercer University. She was admitted to the Florida Bar in 2013, and was assistant general counsel at Florida’s Agency for Health Care Administration (AHCA). She is currently studying for a postgraduate master of laws (LLM) degree on a part-time basis.

 

Photo: JvL

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