Very long post - only for those who are very interested.
Since this bill is apparently based off the prior Illinois bill, and since it seems likely to pass the NY Senate (given it's unanimous passage in the assembly), I think it is worth going over the bill and understanding what it means. This bill in substantially similar form may end up being the law in several states.
I looked over the bill and it is relatively short as legislation goes. It can be found here:
A9529 - NY Senate Open Legislation - Prohibits the sale of electronic cigarettes to minors and items not defined as a tobacco product or approved by the FDA as a tobacco use cessation or harm reduction - New York State Senate
First of all, the bill bans " sale and distribution." It does not ban purchase or possession. That means it isn't illegal under this bill to use, possess or purchase e-cigs or juice. E-cigs are not being treated like hard drugs or pot. So the end consumer does not need to worry about whether he or she is breaking the law. That is the sole concern of the seller.
Second, the bill defines "electronic cigarette" as A BATTERY-OPERATED device THAT CONTAINS CARTRIDGES FILLED WITH NICOTINE, FLAVOR AND OTHER CHEMICALS THAT ARE TURNED INTO VAPOR WHICH IS INHALED BY THE USER. This definition, however, is only relevant to the portion of the bill which bans sale to minors. It isn't relevant to distribution or sale to adults. Hence, for our purposes, we need not concern ourselves with the nuances of that particular definition.
Third, the section which concerns us the most reads as follows:
S 1399-MM-1. PROHIBITION OF PRODUCTS NOT DEFINED AS tobacco PRODUCTS OR APPROVED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION. 1. PRODUCTS CONTAINING OR DELIVERING NICOTINE INTENDED OR EXPECTED FOR HUMAN CONSUMPTION THAT ARE NOT TOBACCO PRODUCTS, AS DEFINED IN SECTION THIRTEEN HUNDRED NINETY-NINE-AA OF THIS ARTICLE, SHALL NOT BE DISTRIB UTED OR SOLD UNLESS SUCH PRODUCTS HAVE BEEN APPROVED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION FOR SALE AS TOBACCO USE CESSATION OR HARM REDUCTION PRODUCTS OR FOR OTHER MEDICAL PURPOSES AND ARE BEING MARKETED AND SOLD SOLELY FOR THAT APPROVED PURPOSE. 2. IN ADDITION TO ENFORCEMENT ACTIONS AUTHORIZED IN SECTION THIRTEEN HUNDRED NINETY-NINE-EE OF THIS ARTICLE, THE ATTORNEY GENERAL MAY APPLY IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK ON FIVE DAYS NOTICE, FOR AN ORDER COMPELLING COMPLIANCE WITH THIS SECTION. IN ANY SUCH PROCEEDING THE COURT MAY IMPOSE A CIVIL PENALTY IN AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS FOR EACH VIOLATION.
I have bolded the most interesting portion.
Clearly, e-liquid which "contains nicotine" is banned for sale or distribution. The question is, what about the hardware? There seems to be an intent to ban the hardware as well, based on the inclusion of the word "delivering" in the description. However, can this apply to any device that has a dual use? E-cig hardware can be used to vaporize any liquid, whether it contains nicotine or not, and in fact, some users do vape nic free liquid.
Another device which can "deliver nicotine" is a syringe. One could use it to inject nicotine. Not advisable, but it could be done. Syringes, incidentally, can also be used to inject ......, which is illegal, or by diabetics to inject insulin, which is legal. Syringes are, of course, legal everywhere, and I don't think they intended to ban syringes with this law. Yet that is how the law can literally be read, IF it is interpreted as precluding the sale or distribution of any device which has a dual use.
Perhaps the NY authorities get around this in court, but it seems like an issue to be litigated, as the statute has not carefully defined what is and isn't banned.
Finally, the Smoking Everywhere v. FDA case has a strong bearing on the future of this statute because the adult ban is tied directly to the FDA and the status of e-cigs with that organization.
If the FDA wins that case, that means the FDA has been allowed to regulate e-cigs as a drug or device, meaning this statute will stay in effect until the FDA tests and then finally approves e-cigs (or some regulated version of them).
If the FDA loses that case, it means that the court held that e-cigs are a "tobacco product" within the meaning of the federal statute and that, if the FDA wants to regulate e-cigs, it must do so as a tobacco product (meaning no ban, but possibly certain regulations.) The statute does rely on NY's own definition of "tobacco product," which I have not read. However, it is a safe bet that it is the same federal definition that is now being considered in court, and that if the FDA loses and begins to regulate it as a "tobacco product," this law will cease to apply.
Ironically, if the FDA were to choose to not regulate e-cigs, this ban would remain in effect, because lifting it is contingent on FDA approval, and the FDA does not "approve" products that they don't regulate.
However, given the choice between some regulation and no regulation, the FDA would certainly choose to regulate e-cigs as a tobacco product. That presumably would automatically lift this ban.
The bottom line - pay very close attention to what is happening in federal court right now. These proposed state bans are all taking their lead from the FDA, and the continued application of these state bans may well hinge on the outcome of that case.
- wolf
Since this bill is apparently based off the prior Illinois bill, and since it seems likely to pass the NY Senate (given it's unanimous passage in the assembly), I think it is worth going over the bill and understanding what it means. This bill in substantially similar form may end up being the law in several states.
I looked over the bill and it is relatively short as legislation goes. It can be found here:
A9529 - NY Senate Open Legislation - Prohibits the sale of electronic cigarettes to minors and items not defined as a tobacco product or approved by the FDA as a tobacco use cessation or harm reduction - New York State Senate
First of all, the bill bans " sale and distribution." It does not ban purchase or possession. That means it isn't illegal under this bill to use, possess or purchase e-cigs or juice. E-cigs are not being treated like hard drugs or pot. So the end consumer does not need to worry about whether he or she is breaking the law. That is the sole concern of the seller.
Second, the bill defines "electronic cigarette" as A BATTERY-OPERATED device THAT CONTAINS CARTRIDGES FILLED WITH NICOTINE, FLAVOR AND OTHER CHEMICALS THAT ARE TURNED INTO VAPOR WHICH IS INHALED BY THE USER. This definition, however, is only relevant to the portion of the bill which bans sale to minors. It isn't relevant to distribution or sale to adults. Hence, for our purposes, we need not concern ourselves with the nuances of that particular definition.
Third, the section which concerns us the most reads as follows:
S 1399-MM-1. PROHIBITION OF PRODUCTS NOT DEFINED AS tobacco PRODUCTS OR APPROVED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION. 1. PRODUCTS CONTAINING OR DELIVERING NICOTINE INTENDED OR EXPECTED FOR HUMAN CONSUMPTION THAT ARE NOT TOBACCO PRODUCTS, AS DEFINED IN SECTION THIRTEEN HUNDRED NINETY-NINE-AA OF THIS ARTICLE, SHALL NOT BE DISTRIB UTED OR SOLD UNLESS SUCH PRODUCTS HAVE BEEN APPROVED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION FOR SALE AS TOBACCO USE CESSATION OR HARM REDUCTION PRODUCTS OR FOR OTHER MEDICAL PURPOSES AND ARE BEING MARKETED AND SOLD SOLELY FOR THAT APPROVED PURPOSE. 2. IN ADDITION TO ENFORCEMENT ACTIONS AUTHORIZED IN SECTION THIRTEEN HUNDRED NINETY-NINE-EE OF THIS ARTICLE, THE ATTORNEY GENERAL MAY APPLY IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK ON FIVE DAYS NOTICE, FOR AN ORDER COMPELLING COMPLIANCE WITH THIS SECTION. IN ANY SUCH PROCEEDING THE COURT MAY IMPOSE A CIVIL PENALTY IN AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS FOR EACH VIOLATION.
I have bolded the most interesting portion.
Clearly, e-liquid which "contains nicotine" is banned for sale or distribution. The question is, what about the hardware? There seems to be an intent to ban the hardware as well, based on the inclusion of the word "delivering" in the description. However, can this apply to any device that has a dual use? E-cig hardware can be used to vaporize any liquid, whether it contains nicotine or not, and in fact, some users do vape nic free liquid.
Another device which can "deliver nicotine" is a syringe. One could use it to inject nicotine. Not advisable, but it could be done. Syringes, incidentally, can also be used to inject ......, which is illegal, or by diabetics to inject insulin, which is legal. Syringes are, of course, legal everywhere, and I don't think they intended to ban syringes with this law. Yet that is how the law can literally be read, IF it is interpreted as precluding the sale or distribution of any device which has a dual use.
Perhaps the NY authorities get around this in court, but it seems like an issue to be litigated, as the statute has not carefully defined what is and isn't banned.
Finally, the Smoking Everywhere v. FDA case has a strong bearing on the future of this statute because the adult ban is tied directly to the FDA and the status of e-cigs with that organization.
If the FDA wins that case, that means the FDA has been allowed to regulate e-cigs as a drug or device, meaning this statute will stay in effect until the FDA tests and then finally approves e-cigs (or some regulated version of them).
If the FDA loses that case, it means that the court held that e-cigs are a "tobacco product" within the meaning of the federal statute and that, if the FDA wants to regulate e-cigs, it must do so as a tobacco product (meaning no ban, but possibly certain regulations.) The statute does rely on NY's own definition of "tobacco product," which I have not read. However, it is a safe bet that it is the same federal definition that is now being considered in court, and that if the FDA loses and begins to regulate it as a "tobacco product," this law will cease to apply.
Ironically, if the FDA were to choose to not regulate e-cigs, this ban would remain in effect, because lifting it is contingent on FDA approval, and the FDA does not "approve" products that they don't regulate.
However, given the choice between some regulation and no regulation, the FDA would certainly choose to regulate e-cigs as a tobacco product. That presumably would automatically lift this ban.
The bottom line - pay very close attention to what is happening in federal court right now. These proposed state bans are all taking their lead from the FDA, and the continued application of these state bans may well hinge on the outcome of that case.
- wolf
