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New York City Local Law Ban On Electronic Smoking Upheld

Anti-Smoking Ban Upheld

A challenge to New York City Local Law Number 152 was unsuccessful. The Law (Local Law 152) adds regulation to electronic or e-cigarettes. So much for taking one's freedom back - the Plaintiffs, New York City Citizens Lobbying Against Smoker Harassment, sought to declare the law unconstitutional. This case discusses "the one-subject rule" and Plaintiffs' unsuccessful challenge to the law. While you can take your freedom back all you want, don't violate the New York City Local Law.

The New York City Local Law was tied into the antismoking law. Is vaping the same as smoking or does this local law logroll vaping into the smoking prohibition? See NYLJ Article. As the Court of Appeals explained in Economic Power & Constr. Co. v. City of Buffalo, 195 NY 286, 296 [1909]),

"The [one-subject] provision of the Constitution was adopted to check and prevent certain evils of legislation…. Its object was twofold. First, to prevent a combination of measures in local bills and secure their passage by a union of interests commonly known as log-rolling.' Second, to require an announcement of the subject of every such bill to prevent the fraudulent insertion of provisions upon subjects foreign to that indicated in the title. It was intended that every local subject should stand upon its own merits, and that the title of each bill should indicate the subject of its provisions so that neither legislators nor the public would be misled or deceived" (emphasis deleted).

The Court here, elaborates that "The problem of legislative 'logrolling' as referred to in the above-quoted language is 'the uniting of various objects having no necessary or natural connection with each other, in one bill, for the purpose of combining various pecuniary interests in support of the whole, which could not be combined in favor of either by itself' " P. 4 (citing Conner v. Mayor of City of N.Y., 5 NY 285, 293 [1851]). This case is different because "the Constitution's one-subject rule applies only to bills passed by the State Legislature... [i]t is therefore inapplicable in the present case." Id. (citations omitted). Still, there i a statutory equivalent governing this local law.

Before enacting the local law, testimony was heard from all interested parties. A committee report was issued

"following the hearings explained that electronic cigarettes are devices that contain a liquid containing nicotine, as well as varying compositions of flavorings, propylene glycol, glycerin, and other ingredients, that is heated into a vapor that the user inhales. Although they have been marketed as a safer alternative to traditional cigarettes since they were introduced in the U.S. in 2006, the U.S. Food and Drug Administration and the Centers for Disease Control have expressed concern about e-cigarettes' safety for the user and non-user, samples having tested positive for carcinogens, as well as the concern that they may lead to the use of other nicotine products by young people..."

The one-subject rule has also governs New York Local Laws: "The equivalent statutory provisions that directly govern local laws are those contained in the subsequently enacted provisions of the New York City Charter and the Municipal Home Rule Law. Municipal Home Rule Law §20(3) states that '[e]very such local law shall embrace only one subject. The title shall briefly refer to the subject matter'; the New York City Charter provides that '[e]very local law shall embrace only one subject. The title shall briefly refer to the subject-matter'" P. 5 (citing NY City Charter §32).

The Court holds that "Local Law 152 had a single purpose, which was proclaimed in its title and openly debated before the Council, namely, to add e-cigarettes to existing smoking legislation." If you are perplexed (or upset about the ban on electronic cigarettes or vaping), the law makes it clear that this exception (like so many other recent innovations) to nicotine delivery will not find its way into New York City Bars and Restaurants. The Case is Citizens Lobbying Against Smoker Harassment v. NYC, 152723/14 (available here)(C.L.A.S.H. v. NYC, 152723/14, NYLJ 1202776020121, at *1 (App. Div., 1st, Decided January 3, 2017)).

"Order, Supreme Court, New York County (Frank P. Nervo, J.), entered May 11, 2015, modified, on the law, solely to declare that Local Law 152 is enforceable and not violative of the New York State Constitution or statutory law, and as so modified, affirmed, without costs."

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