What is the next step for smoking bans?
New York City Proposes to Include E-Cigarettes in Flavor Ban
by Troutman Sanders Tobacco Practice
The New York City Council has recently proposed a measure that would prohibit so-called “characterizing flavors” in e-cigarettes. The move would subject vapor products to the existing ban on “characterizing flavors” in all tobacco products, which only allows flavored tobacco products to be sold in tobacco bars that derive a certain percentage of their revenue from tobacco sales.
The “characterizing flavor” ban does not prohibit the flavors of tobacco, menthol, mint or wintergreen. Products with those flavors could continue to be sold anywhere. However, chocolate, vanilla, herb, dessert or fruit flavors would be prohibited in most venues.
The definition of a prohibited “characterizing flavor” is not entirely clear. It is defined as a “distinguishable taste or aroma . . . imparted either prior to or during consumption of a tobacco product.” Public statements by a manufacturer regarding a product’s flavoring are considered presumptive evidence that the product has a characterizing flavor. The New York City Department of Health and Mental Hygiene was required to issue regulations implementing the characterizing flavor ban, and it did so in 2010. Those regulations further delineate the presumptive evidence to establish a characterizing flavor – where the “label, labeling, or packaging of such product includes a public statement or claim that such product has or produces a taste or aroma relating to . . . any . . . flavor other than menthol, mint, wintergreen or tobacco.”
The vagueness lies in the regulations’ more subjective standard – an evaluation “by a panel of trained sensory testers consistent with ASTM [American Society for Testing and Materials] standards.” However, it does not appear that the “sensory panels” have been implemented. So presumably many vapor companies and retailers could be left to guess whether certain products are covered.
Interestingly, the proposed measure applies to any “electronic device that delivers vapor for inhalation.” So the law would apply, not just to vapor products containing nicotine, but to any product that allows the user to inhale vapor, even if those products do not have nicotine.
April 3, 2014
“E-liquids are more dangerous than tobacco because the nicotine in liquid form can be absorbed more quickly even when diluted,” said Senator Kemp Hannon (R-Nassau). “Forms of liquid nicotine need to be reviewed and scrutinized more than other tobacco and nicotine products.”
Electronic cigarettes are battery-powered devices allowing an individual to inhale nicotine, while emitting only vapor which comes from ‘electronic liquids’ or ‘e-liquids’.
E-liquids are a form of liquid nicotine laced with other chemicals and often flavored, and have been found to be harmful to humans if ingested or simply upon contact with an individual’s skin. E-liquids have been found to be harmful and in some instances deadly. The dangers posed by vapors given off by e-liquids are unknown.
“Currently e-liquids, like electronic cigarettes, are not regulated by the federal government,” said Hannon. “Between 2012 and 2013, calls to poison control centers involving e-liquids have increased by 300%, and many of these have been calls involving children under six years old.”
It has been reported that a teaspoon of highly diluted e-liquids can seriously harm or kill a small child. Adults are not immune to the harm caused by e-liquids either. According to the New York Times, an individual died after injecting e-liquids, and another individual in Kentucky was admitted to the hospital with cardiac problems after her e-cigarette broke and the e-liquid was absorbed through her skin.
Due to the potential health risks associated with the liquid found in e-cigarettes, Hannon’s legislation would ban the sale of e-liquids in New York.
“This legislation brings an awareness of the extreme dangers of these products by banning the products from store shelves with the goal of saving people’s lives,” said Hannon.
March 22, 2014
On March 20, 2014, I brought you a story about the first man to ever get a ticket in the United States for using anelectronic cigarette while driving. Today (Mar. 22), I had the opportunity to sit down and speak with the accused man, Jason Dewing, via a telephone conversation to get further information on the incident. His story paints a picture of the injustices that are occurring in Upstate New York and makes one wonder if “vapers” are being targeted due to the amount of controversy surrounding the e-cigarette industry.
“I didn’t know why I was being pulled over,” said Jason Dewing when I asked him what the first thing that popped into his mind was when he saw the blue lights. He went on to say, “I saw a police officer sitting at a stop sign when I pulled off the highway and the next thing I knew I was being pulled over. When the officer came up to my car he demanded to see the cell phone in my hand. I told him I didn’t have a cell phone that it was an electronic cigarette.” At that point the officer became argumentative and insisted that he saw a cell phone in Jason’s hand. Not wanting to risk putting himself in a worse position, Jason did not argue back and waited as the officer wrote him a ticket for violation of New York traffic law 1225-d.
The incident happened in November 2013; however, Mr. Dewing’s court date was set for March 20, 2014. During the trial, it was Jason’s burden to prove that he in fact did not have a cell phone in his hands when he was stopped by the New York State Police while driving through Whitney Point, NY. When the arresting officer took the stand he could not tell the judge what color the cell phone was which Jason says is a distinct shade of bright red and should be easily identifiable.
In addition, Jason Dewing used to work in loss prevention and used to do Private Investigation work. He was able to get his cell phone records subpoenaed for the court hearing. With those records Jason was able to show the court that the last time he used his cell phone prior to being pulled over was at a gas station 8 miles from the spot where he was ticketed for using his cell phone while driving. After matching those records with the gas station receipt along with the officer’s testimony the judge was satisfied that Mr. Dewing was not using a cell phone while driving; however, this is where the story takes a turn.
Since the court failed to prove that Mr. Dewing was using a cell phone, they went after him for using the electronic cigarette. “The judge asked me if I know what the ‘e’ in e-cigarette means,” said Jason. “I told him it means electronic.” At this point the judge told Mr. Dewing that he was using a portable electronic device which is a violation of New York traffic law 1225-d. Jason, refusing to let the court off that easy, told him that an electronic cigarette was not classified as a portable electronic device under the law. He says, “They were baffled. In fact, they didn’t even know the law. The District Attorney had to look it up after I recited it to them. It is ridiculous that I have never been to law school and do not make it a habit of studying the law, yet I had to tell them what their own law was!” Unfortunately for Jason, the law was not known by the court until after they had already found him guilty of violating New York traffic law 1225-d.
There is a bright side to this story for Jason Dewing. “The judge told me that if I would have made them aware of the law before he made his ruling he would have dismissed the ticket, but since he already made his ruling, the only way to overturn it was to go to appeals court.” Jason feels that he has a very good chance of the case being appealed since the law that he was found guilty of breaking does not even exist. “The way the law is written, an e-cigarette cannot make a call nor can it send text or data; therefore, it cannot be a portable electronic device,” said Jason.
Jason says since the story was first reported there are a lot of people who are angry over this issue. “It is understandable that people are upset, but I count this as a win, because it gives me the opportunity to show that District Attorneys and judges here in New York do not know the laws that they are accusing people of breaking. It also gives me a way to help other people who might be accused of the same thing in the future.”
After speaking with Jason, he does not feel like he was targeted for using an electronic cigarette while driving. Jason told me, “The officer truly believed I had a cell phone in my hand when he pulled me over.” Still, those who are “vaping” while driving will feel a little on edge the next time they pass an officer while using an e-cigarette. It is a sad day in America when one driver can pass an officer smoking a tobacco cigarette and not warrant a second glance, but when another driver passes an officer “vaping” an electronic cigarette he finds himself in front of a judge trying to explain the law.
Mr. Dewing will have 30 days to submit his appeal on this case. As soon as there is new information on a final decision I will have an update right here on Examiner.com as well as on my Vol Vapors blog. Make sure you are subscribed on here as well as on my blog to get updates as soon as there is new information available.
December 30, 2013
By Aaron Short and Beth DeFalco
Diehard smoking activists defiantly lit up their cigarettes in City Hall on Monday as a send-off to their anti-tobacco nemesis, outgoing Mayor Bloomberg.
But City Hall cops immediately removed the protesters from the Blue Room for violating the city’s indoor smoking ban, just as Hizzoner signed a new law expanding the prohibition to cover nicotine-infused e-cigarettes.
“You’ve shown nothing but disrespect and contempt and not just the choice to smoke, but on decision-making itself. This is my legal private life, not public health. You don’t own me like state property” fumed Audrey Silk of NYC Citizens Lobbying Against Smoker Harassment.
“Good people disobey bad laws.”
Smoker Steve Helfer shouted as he was carted off: “Take care mayor . . . .12 years is enough!”
He later told The Post: “The e-cigarette bill being signed by Mayor Bloomberg has no basis in science. And even according to him, the point is to protect people from secondhand smoke. In this bill there’s no mention of protecting anybody from anything, it’s essential just to de-normalize a certain group of people in the city.”
For his part, Bloomberg shrugged off the protesters.
“OK,” he told the protesters “I think it’s time to leave.”
He then instructed security personnel not to let the smokers back inside the bill-signing ceremony.
Video – Audrey Silk, founder of smokers’ rights group NYC Citizens Lobbying Against Smoker Harassment (C.L.A.S.H.), protests by lighting cigarette inside City Hall.
By Jeff Stier
December 16, 2013
Mayor Bloomberg’s going out with one last ban. The City Council, with the administration’s strong backing, is rushing through a law to treat the vapor from e-cigarettes like tobacco smoke under the city’s “Smoke-Free Air Act.” The use of e-cigs, ?a k a “vaping,” would be forbidden in indoor and outdoor locations wherever smoking is banned.
The key idea is that e-cigs somehow facilitate tobacco smoking – but the best evidence suggests the reverse, that they’re mainly useful for (and used by) people trying to quit. So the ban is likely to do harm, not good.
The goal of the Smoke-Free Air Act has always been to reduce exposure to second-hand smoke, and allow people to smoke in fewer places, with the hope that it would cause them to quit. Banning e-cigs helps on neither front.
It won’t cut exposure to secondhand smoke, because there is no smoke — not even any first-hand smoke. And early evidence is that they’re a much more popular way to help people quit smoking than forcing them to stand out in the cold.
It won’t cut exposure to secondhand smoke, because there is no smoke — not even any first-hand smoke. And early evidence is that they’re a much more popular way to help people quit smoking than forcing them to stand out in the cold.
Here’s the science so far: A randomized controlled trial, published in the Lancet last month, found that e-cigs were about as effective an aid in quitting as FDA approved nicotine patches.
The study, funded by the Health Research Council of New Zealand, also found that e-cigs have only a few adverse effects — far fewer than tobacco.
The pro-ban side argues that e-cigarettes “normalize” smoking, because people may be confused and think vaping is smoking. That’s nonsense.
Robin Vitale of the American Heart Association summed up the claim at a council hearing this month: “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.”
Actual business owners beg to differ. Andrew Rigie of the New York City Hospitality Alliance, the trade association for restaurants and bars, testified that e-cigarettes have not become an issue of concern among his members.
It seems that regular folks can tell that the blue LED light on the tip of many e-cigs from the red burning ember at the end of real cigarettes. It helps that vapor doesn’t stink the way tobacco smoke does.
Yes, e-cigs somewhat mimic the old “coffin nails” — that’s why they help you quit. Many smokers prefer kicking the habit with a product that looks and feels like a cigarette.
Spike Babian, co-owner of Vape New York, a city “vape shop,” made the clear point, testifying, “We don’t ban water because it looks like vodka.”
City Health Commissioner Tom Farley presented another red herring at the same hearing, hauling out the “gateway” argument: He claimed, with no data to back up the charge, that e-cigarette use could lead to smoking. In fact, preliminary studies, as well as empirical evidence, show that e-cigarettes are a major gateway away from smoking.
A study presented at the American Association for Cancer Research meeting in November looked at 1,300 college students, average age 19. Only 43 of those told researchers their first nicotine product was an e-cigarette, and only one of the 43 later switched to cigarettes. The vast majority of the 43 who’d tried an e-cigarette weren’t using nicotine or tobacco when researchers followed up.
“It didn’t seem as though it really proved to be a gateway to anything,” said researcher Theodore Wagener, an assistant professor of general and community pediatrics at the University of Oklahoma Health Sciences Center, in Oklahoma City.
As an ultimate fallback, activists suggest e-cig vapor might be dangerous. But in a study this summer, Drexel University’s Dr. Igor Burstyn found “there is no evidence that vaping produces inhalable exposures . . . that would warrant health concerns by the standards that are used to ensure safety of workplaces.”
Grasping at straws, the ban fans suggest it’s just the prudent thing to do until we have more data. No, the prudent thing to do is to help smokers trying to quit.
Jeff Stier, a National Center for Public Policy Research senior fellow, lives on the Upper West Side.
DEC 05 2013
We shall start today with a quote from NYC Councillor James Gennaro, taken from an interview in which he sought to justify a ban on using an e-cig in public spaces in NYC. It’s lengthy but worth reading through in its entirety.
thinking back to the original smoking ban you referred to, a lot of that was driven by employees of bars, employees of restaurants saying we do not want to be subjected to the smoke. are they now saying the same thing about these vapors? not so much. I mean, when we did the first bill, which based on — which had to do with indoor spaces, it was all based on that. Then we did more measures to take them out of public spaces, to take them out of outdoor spaces like parks and beaches. And so what we’re doing — and those second set of measures were more about sociology and denormalizing than they were sort of hard medical science. We thought it was important to make sure that smoking was completely denormalized.
Gennaro was speaking in an interview on CNBC, and you can watch James’ valiant but largely unsuccessful efforts to group words into coherent sentences here if you’re of a mind to.
But I didn’t come here today to denigrate the good councillor’s public speaking prowess. Because Gennaro has now admitted in public something that we have known all along.
Denormalization has absolutely nothing to do with public health.
So what is it if it’s not about health?
Let me just say that I’m going to discuss denormalization in the context of smoking, because let’s face it that’s the flawed and pointless model that tobacco control are using for e-cig denormalization. Denormalization is a weasel word used by the people who would unleash it upon us in an attempt to conceal the moral, ethical and intellectual bankruptcy of their thinking and methods. They are telling us that because they dislike something, they have a right to engineer a society in which it becomes unacceptable. As a quick thought exercise, take the phrase “denormalization of smoking” and replace “smoking” with a word or phrase of your choice from the following list;
Not being white and middle class
Those bobbly blue ones in a pack of licorice allsorts
It doesn’t matter which word you chose, or even if you supplied one of your own. The exercise serves to demonstrate that to remove something from the fabric of everyday life, based purely on the fact that you dislike it, is morally indefensible. Perhaps with this in mind, the people who dedicated lucrative careers to denormalizing smoking told us that their vicious personal crusade was based upon science. Gennarro has rather generously admitted that in this instance, science was not a factor. This is all about social engineering; an effort to remodel their environment to suit their own ideals and to hell with anybody forced to share it with them. Like I said, morally indefensible.
Sweep it under the carpet, why don’t you?
Tobacco control often likes to point to the denormalization of smoking as a major factor in reduction of smoking prevalence. In fact denormalization is a mere bit-player in their pantomime of deception. Smoking prevalance has fallen because the general population is better educated as to the consequences of using lit tobacco. Just because people aren’t seen smoking in public (and in fact they are, but that’s an inconvenient truth) doesn’t mean that other people don’t know that smoking exists. To put it as delicately as I can, it would be highly unusual for me to step outside my house and find people engaging in bedroom activities in the street. But I know very well that people do those things. They just don’t do them, for the most part at any rate, in public spaces. Although your own experiences on that may vary widely from my own.
What this tells us is that you don’t control a behaviour merely by concealing it from view. By doing so, you may succeed in engineering an illusion of your own perfect little environment in which nobody does things you dislike. But rest assured, they are still doing them. And everybody knows very well indeed that they are doing them. Add “pointless exercise” to “morally indefensible”.
It’s more than just a waste of time…
This massive social engineering effort is not only ultimately pointless and immoral, it takes resources away from potentially useful activities that may genuinely improve public health. Activities such as educating people on the effects of smoking. Activities such as ensuring that people understand the range of alternatives to lit tobacco available to them. Alternatives such as the e-cigs that, with absolutely no justification, are seeing vast quantities of scarce and expensive resources ranged against them to denormalize them. Scarce and expensive resources that SHOULD be brought to bear upon genuinely improving public health and education.
Sadly though, denormalization is often seen as the jewel in a tobacco control crown. It is the very justification for its deceptive existence. It gives tobacco control something to point at, and proclaim loudly that smoking has been eradicated when what they really mean is that it has been moved from their sight.
It’s not about health at all. It’s about self congratulation, self justification and deception. Deception that provides a foundation from which they seek to achieve control of an environment they refuse to share in a fair and equal fashion.
NYC COUNCIL HEARING ON BANNING E-CIGS
PART I:? http://www.youtube.com/watch?v=EGoEnV1iGxo
PART II: http://www.youtube.com/watch?v=NIczyefUfhI
PART III: http://www.youtube.com/watch?v=MGXGLyvlfoQ
PART IV: http://www.youtube.com/watch?v=ijRA0OfQ1Rw
PART V:? http://www.youtube.com/watch?v=ek85Rm5bg8o
New York City May Ban Vaping Because It Looks Like Smoking
Nov. 28, 2013
The New York City Council is considering a ban on the use of electronic cigarettes in bars, restaurant, and other “public places”—not because there is any evidence that the devices pose a hazard but because they look too much like regular cigarettes. Councilman James Gennaro, a sponsor of the proposed ban, tells The New York Times, “We see these cigarettes are really starting to proliferate, and it’s unacceptable.” Why is it unacceptable? According to the Times, “Mr. Gennaro said children who could not differentiate between regular and electronic smoking were getting the message that smoking is socially acceptable.”
So it is not the product that bothers Gennaro as much as the message it supposedly sends. Presumably he would have the same complaint if people started wearing T-shirts proclaiming that “Smoking Is Cool,” although banning those would be constitutionally problematic. Might there be a way to address Gennaro’s concern about the impact that the sight of vaping has on impressionable young minds without resorting to the use of force? I’m just spitballing here, but maybe parents could explain to their children the difference between e-cigarettes, which deliver nicotine in a propylene glycol vapor, and conventional cigarettes, which deliver nicotine in a cloud of toxins and carcinogens generated by burning tobacco. Even if Gennaro does not trust people to educate their offspring about such matters, surely a measure short of a total ban could accomplish the goal he has in mind. How about taking a page from the city’s regulations regarding toy guns by restricting e-cigarettes to bright fluorescent colors, so they can be readily distinguished from the real thing?
Some might question Gennaro’s premise that children should never see adults doing something (or seeming to do something) that children are not supposed to do. If kids must be shielded from the sight of vaping because it looks like smoking, perhaps they also should be shielded from the sight of drinking—not just of alcoholic beverages but of any drink that resembles an alcoholic beverage. After all, how does an innocent child know the difference between O’Doul’s and Budweiser, or between a Coke that contains Jack Daniels and one that does not?
Gennaro’s rationale for banning vaping in bars and restaurants actually is similar to the motivation for banning smoking in bars and restaurants. The official rationale for such laws is protecting employees, and their popularity can be explained by the simple fact that most people find tobacco smoke distasteful, whether or not they actually worry about the long-term health consequences of sitting in a smoky bar for 30 years. But from a “public health” perspective, the real payoff, in terms of reducing morbidity and mortality, is deterring smoking by making is less convenient and less socially acceptable. Gennaro worries that e-cigarettes will undermine that goal.
That seems rather implausible, since the main selling point of e-cigarettes is that they eliminate tobacco, its combustion products, and the health hazards associated with them. Although the Times says vaping in public remains legal thanks to “a loophole” in New York’s smoking ban, the truth is that vaping remains legal precisely because vaping is not smoking. By seeking to equate the two, control freaks like Gennaro may achieve the opposite of their avowed aim, increasing rather than reducing smoking-related illness. As Craig Weiss, president of the e-cigarette company NJoy, tells the Times, “If you make it just as inconvenient to use an electronic cigarette as a tobacco cigarette, people are just going to keep smoking their Marlboros.”
Yesterday Zenon Evans noted that Chicago also is considering a ban on vaping.
NYC eyes electronic cigarette ban in public spaces
4 Dec 2013
By: Jeff Morganteen | Producer, CNBC.com
Electronic cigarette smokers be warned: The time of smoking in New York City bars and restaurants without consequence may soon come to an end.
The New York City Council turned its sights on electronic cigarettes during a public hearing Wednesday morning to discuss whether to ban them from restaurants and public places, such as parks and beaches, the same way the city treats traditional tobacco products.
(Read more: Dutch sound alarm about possible risks of e-cigarettes)
Councilman James Gennaro, D-Queens, told CNBC on Wednesday that science remained inconclusive on whether vapor from the e-cigarettes presented safety risks to nearby nonsmokers. Instead of tobacco, the battery-powered e-cigarettes ignite a flavored liquid and users inhale vapor rather than smoke.
Gennaro, the lead sponsor of the bill banning public use of e-cigarettes now before the council, said he wanted to “err on the side of caution.” He added that the city’s measures to ban smoking from outdoor public areas under Mayor Michael Bloomberg were more about public acceptance of smoking than science.
“Those second set of measures were more about sociology and denormalizing than they were hard medical science,” Gennaro said on “Squawk on the Street.” “We thought it was important to make sure smoking was completely denormalized.”
In the meantime, electronic cigarettes make up a booming business that could surpass $1.7 billion this year, analyst Bonnie Herzog of Wells Fargo Securities told CNBC in August. The surge in popularity also comes amid cries for more regulation, at both the federal and local levels.
By James Daniels
Where will the government outlaw smoking next? To find out, read its polls.
April 25, 2012