C.L.A.S.H. is a grassroots organization established in 2000 dedicated to advancing and protecting the interests of adults who choose to smoke cigarettes or enjoy other forms of tobacco or use electronic cigarettes.
In October 2013 C.L.A.S.H. was victorious in having the court strike down the smoking ban imposed by New York State's Office of Parks on its properties.
On December 30, 2013, former NYC Mayor Michael Bloomberg signed into law a ban on the use of electronic cigarettes (e-cigs) wherever conventional smoking has been banned in NYC. The City accomplished this by folding it into the NYC Smoke-Free Air Act.
C.L.A.S.H not only joined in to testify against this proposal at the City Council hearing on Dec. 4th, but attended the bill signing ceremony on the 30th and, after saying a few allowed words, lit up in protest in front of this Nanny-In-Chief.
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 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.
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 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.
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."
This lawsuit does not pit vaping against smoking or vapers against smokers or vice versa. Nothing in the content of the complaint or the grounds on which this is argued has anything to do with "better" or "worse" in any context imaginable. The entire case is built around the city council's violation of NYC's "One Subject Rule" as described above. Period.
This is not vapers "aligning" with smokers or vice versa. This lawsuit is not an argument that puts either in the same class as the other. People argue the "differences" between the two. That's fine. But there is one thing that is shared -- the same enemy. This suit is to go after that enemy. Period.
A number of C.L.A.S.H. members are vapers now and C.L.A.S.H. has added protecting the interests of vapers to its mission statement.
As C.L.A.S.H.'s co-plaintiff on this lawsuit,
vaper advocate Russ
Wishtart (also of Click
Bang Radio), has put it, let's overturn this ban "by any means necessary."
Should we prevail, what vapers get out of this is a legal distinction between vaping and smoking, a chill on e-cig ban proposals elsewhere around the country, and the ability to continue vaping indoors in NYC legally. The filing of the suit itself raises the e-cig profile even more and affords you the opportunity to expand on the issue through media interest. What conventional cigarette smokers get out of this is that by banning e-cigs the authorities prove that smoking bans were about control over personal lifestyle choice all along.
Most of all? It's the principle of the matter! To take a quote from our stand against NYS Parks' unlawful ban: "[O]fficials simply cannot... restrict peoples' freedom without appropriate legislative [power]. Democracy is as much about process as it is about results, and this is a flagrant abuse of process that we will not allow to go unchecked." (Joshpe Law Group)
A special word to our conventional cigarette smokers and all others who sympathize over the following:
In order to distinguish a law that distinctly
bans a product to affect personal behavior from a law that distinctly
banned an act to "protect others" there are numerous references
(mostly through authority figure quotations) to "the harm caused by exposure
to tobacco smoke." However, that does not mean that C.L.A.S.H. agrees
or concedes that so-called secondhand smoke has been proved to be harmful.
We merely throw their own words back at them to prove they
based each ban on a different intent.
Philosophically, it could be said that this fight is more the core vaper community's to defend rather than a much longer-standing smokers' rights group that traditionally represented the interest of adults who choose to smoke cigarettes or use other forms of tobacco; that is until some members turned to vaping and whose interests C.L.A.S.H. equally protects. Smokers and vapers and smoking and vaping are an undeniable intrinsic pair.
But also C.L.A.S.H. has always maintained the bigger picture -- the principles involved. That's why C.L.A.S.H. was also actively opposed to the trans fat and soda bans. And why C.L.A.S.H. steps up to the plate now.
Nevertheless, the weight of the cost of this lawsuit shouldn't be borne entirely on C.L.A.S.H.'s shoulders. It really is more beneficial to the core vaping community than it is to anyone else. So C.L.A.S.H. asks for your -- everyone's -- help.
If you are a vaper still hesitant over "alignment" concerns consider this: A small donation is hardly an amount that can be called an alignment, while at the same time a respectful nod toward a case that has your interests in mind.
Joshpe Law Group is the firm handling this case. The same firm that led C.L.A.S.H. to victory over NYS Parks.
So please help! Make a contribution today!
We will list any
e-cig vendor donor as a supporter on this page that asks.
UPDATE: On March 25, 2014,
this lawsuit was filed in court. This is not an indication that donations
to meet our goal are no longer needed. Our attorneys were willing
to go forward without full funding in the good faith and belief that C.L.A.S.H.
will be able to ultimately raise the full amount. That's how much
they believe in this cause, this case and C.L.A.S.H. character.
RELEASE (w/link to complaint).
(The generosity of some that call for extra special acknowledgement creates
the need now for sponsorship level notation.)
Altsmoke @ http://altsmoke.com/
RTS Vapes @ http://www.rtsvapes.com/
$5000 to $9999:
$2000 to $4999:
National Vapers Club @ http://www.vapersclub.com/
Cignot @ http://www.cignot.com/
Vape NY @ http://vapeny.com/
Baker White @ http://bakerwhiteinc.com/
$1000 to $1999:
CASAA (The Consumer Advocates for Smoke-Free Alternatives Assoc.) @ http://casaa.org/
The Steam Factory @ www.facebook.com/thesteamfactory.us
Fluid Vapor @ http://www.fluidvapor.com
Henley Vaporium @ http://www.henleycigs.com/vaporium/
$501 to $999:
D&D Vapor @ http://www.dndvapor.com/
Up to and including $500:
Artisan Vaping @ http://artisanvaping.com/
Timeless Vapor @ http://timelessvapor.mybigcommerce.com/
Olio Vapes @ http://www.oliovapes.com/
Fat Cat Vapor Shop @https://www.facebook.com/pages/Fat-Cat-Vapor-Shop-LLC/1414900952076700
Beyond Vape @ http://beyondvape.com/
VA Vapers @ http://vavapors.com/
Vapes @ http://www.vapes.com/
And all the private individuals who are too many to list! WE know who you are!!
(This includes the lawyer and court fees for this initial lawsuit and the certain appeal.
If we win they will appeal. If they win we will appeal.)
TOTAL DONATIONS TO DATE:
$40,001 (yes, and one)
August 8, 2014: Thank
you to Baker White Inc. for covering the difference from the last total
to our goal!
Now if we can raise just
a few more hundred dollars to cover what PayPal took out in fees