The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
New York bans smoking in many public places—but does that cover "vaping," which is to say use of "e-cigarettes" that produce nicotine-infused vapor? No, said a New York trial court earlier this month, in People v. Thomas, which involved vaping on a subway platform. The New York public smoking statute defines "smoking" as:
the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco.
And, as the court noted,
An electronic cigarette neither burns nor contains tobacco. Instead, the use of such a device, which is commonly referred to as "vaping," involves "the inhalation of vapourized e-cigarette liquid consisting of water, nicotine, a base of propylene glycol or vegetable glycerin and occasionally, flavouring."This does not fit within the definition of "smoking" under PHL § 1399-o.
The People contend that no specific prohibition on electronic cigarettes is necessary because "the courts of New York have yet to make a determination as to whether electronic cigarettes are to be viewed any differently under these sections than tobacco cigarettes." But this is precisely backward. There are no "common law" crimes in New York; this court has jurisdiction only over actions brought pursuant to statutory prohibitions, and only where the accusatory instrument makes out every element of the offense as it is defined by statute. Moreover, it is well established that "laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid/".
The legislative body of New York City has taken measures to address this issue. Since April 29, 2014, it has been illegal under New York City's Smoke Free Air Act to use electronic cigarettes in certain public places. The New York State legislature is also well aware that the Public Health Law does not currently prohibit the use of electronic cigarettes. Indeed, on June 18, 2015, ten days after the occurrence alleged in this case, the New York State Assembly approved Bill A05955, a bill to amend PHL § 1399-o to "[m]ake the restrictions relating to smoking in public areas applicable to electronic cigarettes." That bill died in the state Senate, however, and was returned to the Assembly on January 6, 2016.
Sounds quite right to me, given the statutory definition of "smoking."