A New York court has ruled that, under state law, vapers can’t be charged for violating anti-smoking rules because—as millions of vapers have been repeating for years—vaping isn’t smoking. This is the latest sign of a gradual acceptance by lawmakers and legal systems that the distinction between the two is genuine and significant. In the face of imminent federal regulations, that distinction is paramount to the vaping industry.

“This is going to be a battle fought on many battlefields across the country and everybody is going to have an opinion on it,” said Aaron LoCascio is the CEO of VapeWorld, one of the largest vape distributors in North America. “Even one judge’s decision won’t necessarily be what another judge decides.”

In this case the defendant, Shawn Thomas, was arrested after being caught vaping on a subway platform. Now, it is illegal to vape in most public places in New York City under the city’s Smoke Free Air Act, which was amended at the end of 2013 to include e-cigarettes. But the cops who arrested Thomas charged him under state law, which doesn’t specifically refer to e-cigarettes. Thomas challenged the charge in court and the judge agreed that laws referring to smoking can’t be applied to vaping.

“‘Smoking’ means the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco,” the ruling reads. “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 the law.”

Of course, the state can just amend its public health statute to include vaping alongside smoking prohibitions (in fact, it’s already in the process of doing so) and as the NYC law shows, all that’s required is a little rewording in order to treat vaping like smoking in practice, even if you need to distinguish between the two in the law. But the recognition of the difference between the two is meaningful for the vaping industry, where advocates hope a greater understanding of the distinction may open the door for more nuanced regulations for vaping.

It’s not the first time it’s happened, either. Attorney generals in Virginia and Arizona have both issued opinions that vaping is different than smoking and California Congressman Duncan Hunter recently argued the distinction at a committee discussion over a bill amendment that would make vaping on airplanes illegal.

“They have propylene glycol, flavoring, and water in them. It is not an e-cigarette,” Hunter argued. “It doesn’t even look like a cigarette.”

Vaping proponents argue that vaporizers need to be treated distinctly from cigarettes for a number of reasons. For one, all of the research we have so far indicates vaping is less harmful than smoking: as much as 95 percent less harmful. Second, vaping has a couple major differences to smoking: There is no smoke created because there is no combustion, (liquid is heated up to create a vapor) and vaporizers don’t contain any tobacco (e-liquid is made of propylene glycol, glycerin, nicotine, and flavorings).

Lastly, vaping is generally considered to be less intrusive to bystanders than smoking because there’s no smell and often no visible vapor. Those photos of huge, white, thick vape clouds you see on social media? Those are made intentionally (it’s called cloud chasing). But many vapers opt for techniques and tools to diminish the visible cloud they produce, according to Gregory Conley, the president of the American Vaping Association, a nonprofit advocacy group. 

“With vaping, if you hold your breath for four or five seconds after you take a puff, no visible vapor is released,” Conley said. “If someone wants to use a vapor product in public but doesn’t want to draw attention to themselves, that option is always there and it’s an option I use.”

Conley told me cigalikes (vaporizers that resemble cigarettes and have a light at the end that glows like embers) are becoming less popular, accounting for about a $1.5 million share of the $3.5 billion market, in part due to vapers’ desires to distance themselves from smoking.

“There are a lot of people who simply do not like the sight of cigarette smoke, even if it’s not smoke and it’s not coming from a cigarette,” Conley said. “There is an emotional reaction.”

Still, pointing out the difference only to then lump the two kinds of products together doesn’t do vapers much good. Advocates like Conley and Hunter hope that the more lawmakers and courts confirm this distinction, the more likely we’ll get regulation that considers vaping as an entirely new and distinct activity and approach each decision through that lens. Maybe vaping on a plane is a bad idea, for example, but vaping in Central Park isn’t a big deal. Right now, the trend seems to be to just lasso smoking and vaping together, but as more research and information about vaping is revealed, that could gradually begin to change.


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