"OPERATION TAKE BACK"
LEGAL DEFENSE FUND DRIVE
NYC E-CIG BAN LAWSUIT
 
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GROUNDS
 
NYC cannot fold a ban on the use of a product to regulate personal behavior 
into a law that is solely intended to "protect others from tobacco smoke exposure."
 
 
ISN'T: 
This is not a court sought referendum on "health."  Neither the science nor but an academic distinction between  electronic and conventional cigarettes are the grounds on which this suit is going forward. 

In 2003 C.L.A.S.H. had sued both New York City and State over their respective indoor smoking bans on scientific and constitutional grounds (e.g. freedom of assembly) and lost miserably. 

In the judicial setting, under the prospect of the police powers of the state over public health, the court will refuse to second guess the legislature no matter that they have zero or bad evidence and the challenger has mountains of good evidence.  All they must assert is that they felt they were advancing a noble cause. 

That is called the Rational Basis test ("rational" here is not to be confused with common usage). Unless the challenger is a member of one of the federal or state recognized Protected Classes (e.g. race, color, creed, etc.) then no higher level of scrutiny of the evidence will be applied and the court will defer to the legislature.  In other words, "Don't like it? Go back to your lawmakers and have them change it." 

To challenge a ban enacted through legislation on the science ("health") is to go on a suicide mission. 

There might be a time and place for it but this is not it.

IS: 
After the harsh lesson learned from our 2003 case we bided our time.  When NYS Parks announced that it would be imposing an outdoor smoking ban on its properties without benefit of legislation (no vote on a law by the state lawmakers) we knew we had them by a technicality:  Unlawfully exceeding their authority.  And we won

Tyranny has to be taken down and you take it down however you can. 

Once again, this time in the case of the NYC ban on e-cigs, the opportunity to overturn it rests on a technicality:  "Every local law shall embrace only one subject." (As per the NYS Constitution and NYC Charter) 

The NYC Smoke-Free Air Act's only intent, through its history, has been to protect non-smokers from exposure to other people's cigarette smoke.  Official documents bear that out. 

The Legislative Findings, as engrossed in the bill and law to ban e-cigs, give six official reasons for adding e-cigs to the Smoke-Free Air Act: 
 

    E-Cigs have not been approved by the FDA for smoking cessation and are currently unregulated by the FDA.  
    E-Cigs may interfere with smokersí attempts to quit.  
    E-Cigs may cause children who experiment with them to become addicted to nicotine and switch to cigarettes.  
    E-Cig use may interfere with enforcement of the Smoke-Free Air Act.  
    E-Cig use may increase the social acceptability of smoking.  
    E-Cig ban will protect youth from observing behaviors that could encourage them to smoke. 
Not ONE word about exposure. 

In short, the ban on e-cigs is distinct from the SFAA whereby its intent is the product regulation of e-cigs to affect personal behavior rather than protecting others from  tobacco smoke (or tangentially vapor). 
 

Under the "One Subject" Rule, the ban on the use of e-cigs has no place in the Smoke-Free Air Act. 

As our own Councilman Vincent Gentile observed at the hearing: 

     "Iím just wondering if weíre here today based on . . . your [Health Commissioner's] testimony trying to fit a square peg into a round hole. Based on the definition that we have for the Smoke-Free Air Act. And the fact that the Smoke-Free Air Act addressed the issue of secondhand smoke.  And as you said in your testimony who [sic] has been pointed out in . . . the presentation is there is no traditional secondhand smoke with . . . e-cigarettes.  So are you suggesting that we redefine the . . Smoke-Free Air Act because the . . . basic definition was to protect secondhand smoke."