In December 2013, the New York City Council approved and Mayor Bloomberg signed into law a bill to ban the use of electronic cigarettes in public places.  The ban was added to the City’s 2002 Smoke-Free Air Act (the “SFAA”).  The SFAA was initially enacted to ban the use of cigarettes in public places, and various sources indicate that the purpose of the SFAA is to protect the public from involuntary exposure to second-hand smoke. 

In response to the electronic cigarette ban, on March 25, 2014, the New York City Citizens Lobbying Against Smoker Harassment, a group commonly known as “CLASH,” filed a complaint against New York City, the New York City Council and the speaker of the City Council.  The basis for CLASH’s lawsuit is that the electronic cigarette ban violates a provision of the New York State Constitution, which provides that local laws shall only apply to one subject.  In essence, the “One Subject” rule prohibits a local law from having more than one purpose.

In the complaint, CLASH alleges that the SFAA now has two subjects in violation of the rule.  CLASH alleges that the first subject is the “protection of the public from the harmful effects of second-hand smoke exposure,” and the second subject is “regulation of E-Cigs.”  “Smoking” and “vaping” are two different activities, according to CLASH.  According to CLASH, every reference to the word “smoking” in the SFAA is now followed the phrase “or using an electronic cigarette” or the phrase “and using an electronic cigarette.”  CLASH argues that the words “or” and “and” are used to link two different subjects together, which in this case, violates “One Subject” rule.

The complaint has three causes of action.  First, CLASH seeks to have the court declare that the law is unconstitutional because it adds a second subject to the SFAA.  Second, CLASH seeks to have the court declare that the law cannot be implemented because it is unconstitutional.  Finally, CLASH seeks to have the court permanently enjoin the Defendants from implementing or enforcing the law.

We will report back as the litigation progresses.

For questions and/or comments, please contact Bryan Haynes, Troutman Sanders Tobacco practice partner, at 804.697.1420 or by email.