Ban on E-cigarettes takes effect today

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A man smokes an e-cigarette. (AP Photo/Wichita Falls Times Record News, Torin Halsey)
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Dan Goldberg

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New Yorkers are no longer allowed to smoke electronic cigarettes in any place where smoking regular cigarettes is prohibited, including bars, restaurants, offices, parks and beaches.

The amendment to the Smoke-Free Air Act, a 2002 law, takes effect today and means that electronic cigarettes are now treated the same as regular cigarettes.

The bill was one of the last signed by Mayor Michael Bloomberg, and was passed despite objections from some who claimed that electronic cigarettes help people quit smoking regular cigarettes.

Health commissioner Mary Bassett, a supporter of the bill, plans to travel to Washington on Thursday to voice her support for federal oversight, and for addressing the marketing of e-cigarettes.

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She will meet with health commissioners from other large cities and Sen. Dick Durbin to discuss how municipalities and the federal government can work together to regulate electronic cigarettes, a multi-billion dollar industry that is growing rapidly.

“E-cigarettes are unregulated and rapidly growing in popularity, despite their potential for addiction and unknown health risks,” Bassett told Capital on Monday. “New York City is proud to join other major cities in limiting the use of these products in places where conventional smoking is restricted.”

A first violation for the owner of an establishment comes with a fine of between $200 and $400. A person can be fined up to $100 for each violation. 

Last month, Reuters reported that the advocacy group New York City Citizens Lobbying Against Smoker Harassment asked the state Supreme Court to void the law, arguing the new legislation was in breach of the "one-subject rule" in both the state constitution and the city charter.

Whether that challenge is successful, there is a concerted effort among public officials to curb e-cigarette use. Local, state and federal officials have all warned that it is a dangerous product that is being marketed to children.

Last week, the Food and Drug Administration proposed new rules that would for the first time allow the federal agency to regulate electronic cigarettes.

The new regulations require manufacturers of e-cigarettes to register with the F.D.A., and provide the agency with the product's ingredients. The rules also ban the sale of e-cigarettes, cigars and pipe tobacco to anyone under 18 years old.

That is already law in New York State, but is important because it establishes a precedent for the F.D.A. to regulate the product, said Dr. Andrew Hyland, chair of the Department of Health Behavior at Roswell Park Cancer Institute in Buffalo.

Electronic cigarettes may not be as dangerous as regular cigarettes but that does not mean they are safe, he said, because they still emit cancer causing chemicals and could induce children to begin smoking.

“It's a matter of a little poison versus a lot of poison,” Hyland said. “There is reason to be concerned particularly with how it is being marketed. I think the jury is still out on whether these things are good or bad for public health but those who say they are safe, that's not the case. They may be safer when used to get off combustible cigarettes.”

Jack Burkhalter, assistant director of Memorial Sloan Kettering's Tobacco Cessation Program, recently said there are too many unknowns to accurately account for the health risks from an electronic cigarette.

“There is no one product — so it is impossible to determine whether any given e-cigarette is in fact safer than a conventional one, or safer than another brand of e-cigarette,” he said on a hospital blog.

Bassett applauded the F.D.A., saying the “proposed rule is an important first step towards protecting the next generation from a lifetime of nicotine addiction.”

“Despite posing potentially serious health risks, e-cigarettes have been accessible to youth and likely will continue to be marketed to appeal to children,” Bassett said.

Durbin, who will meet with Bassett on Thursday, blasted the F.D.A. for not going far enough. The rules do not prohibit flavored e-cigarettes, which public health experts say attract children.

“Shame on the FDA Faced with a responsibility to protect our children from an addiction to a product that can harm them, the FDA strained to create a political compromise," Durbin said in a statement. "Prohibiting sales to kids but doing nothing to protect children from candy flavored marketing in children's venues is an awful outcome. Parents across America lost their best ally in protecting their kids from this insidious product.”

The federal guidelines do not prohibit any state or city from taking further action, something many public health advocates would like to see.

“The most striking thing to me about these draft federal rules is, more than ever, the obligation is on state and local communities to do more work,” Hyland said. “It is going to be years before the [federal] rules get implemented … and if the tobacco manufacturers decide to sue, which they have a history of doing, we are looking at many years, which is why the state and communities have a renewed obligation.”

Assemblywoman Linda Rosenthal, who sponsored the 2011 law prohibiting the sale of e-cigarettes to minors, said she was pleased that the F.D.A. took this step but disappointed the agency did not go further.

“It must go further to protect young people, who are particularly vulnerable, against the potential health dangers flowing from e-cigarette use,” Rosenthal said in a statement. “Banning the sale of flavored e-cigarettes, such as bubble gum, cherry and chocolate and not allowing TV and radio advertisements are necessary to protect this country’s young people.”

Rosenthal is sponsoring one bill that would extend the protections of New York State’s Clean Indoor Air Act to include e-cigarettes, and another bill that would ban the sale of e-cigarette liquid.

“Since the F.D.A. does not expect its proposed regulations to take effect for at least one year, I intend to pass both my bills to ensure that New Yorkers are protected against any dangers associated with e-cigarette use,” Rosenthal said.

CORRECTION: The original version of this article misstated Jack Burkhalter's title. He is the assistant director of Memorial Sloan Kettering's Tobacco Cessation Program, not the director.