On February 5, 2016, a New York City Judge ruled that vaping is not the same as smoking under New York State law and that e-cigarette use is not necessarily banned in the same places as smoking. 

In People v. Thomas, Defendant Shawn Thomas was charged with violating smoking restrictions under the New York State Public Health Law when officers observed him smoking an electronic cigarette on a subway platform, which is not a designated smoking area.

The court noted that the law which banned smoking in certain public places defined smoking as “the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco.”  Vaping, however, does not fall within the statutes definition of smoking, the court found.

According to the New York court, “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 court’s rationale was similar to the rationale employed by the Virginia Attorney General when he found that Virginia’s public smoking ban did not apply to e-cigarettes.

The court did note that on June 18, 2015, 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, however, died in the state Senate.

The court’s decision marks a victory for electronic cigarette users in New York State.  That said, numerous laws have been passed in recent years that expressly restrict the use of electronic cigarettes in certain public places.  For example, 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 (Mr. Thomas was not charged under this law, which imposes civil rather than the criminal penalties imposed under the State law).  In 2016, Virginia legislators attempted to pass a bill that would impose a $100 fine on drivers for smoking in a car carrying children 7-years-old or younger.  That legislation would have expressly included electronic cigarette use.

For questions and/or comments, please contact Bryan Haynes, at 804.697.1420 and by email, or Reade Jacob at 804.697.1411 and by email