Connecticut Passes Law Regulating Use of Electronic Cigarettes (E-Cigs)
Who can use electronic cigarettes? Where can electronic cigarettes be used?
Combine a fear of the unknown, concern for the future of Connecticut children, anti-smoking sentiment, and some poorly drafted legislation — What do you get? The ridiculous result that there is probably now a ban on fog machines (you read that right!) at concert venues and night clubs in Connecticut. Let’s break it down.
On July 6, 2015 Governor Malloy signed into law Public Act 15-206, entitled “An Act Regulating Electronic Nicotine Delivery Systems and Vapor Products.” Aimed at cutting down the presence of “vaping” (or the smoking of electronic cigarettes) in public venues including bars, government buildings, hospitals, concert venues and sporting arenas. The Connecticut Legislature approved the bill on a 24-12 vote in the Senate and a 99-46 vote in the house.
The intended purpose of the ban is to prevent people from “vaping” indoors in most of the same places where smoking is prohibited. However – in trying to be as expansive as possible, the Act results in some rather strange consequences.
If you take a close look at the law (as well as a law passed last year in Connecticut prohibiting the sale of electronic nicotine delivery systems and vapor product to minors) it is clear that the target of these Acts is not the use of nicotine itself. Instead it seems that it is all about perception and social norms. The ban applies to products which contain nicotine and products which do not with equal force. The question I have is – if you pass a law in an attempt to squelch the renormalization of smoking, does that law really need to apply to fog machines as well?
It is not about the nicotine. It’s about perception, and social norms.
Unless you were born under, and continue to live under, a rock, you should know that nicotine is a very addictive substance. (There is a reason that most smokers struggle – and fail – to kick the habit.) Fortunately for some smokers, there are new alternatives in the form of electronic cigarettes or personal vaporizers. While these products are not conclusively safer than cigarettes, they sure contain a lot less chemicals than their “analog” predecessors. Unfortunately, the availability of a cleaner alternative source of inhaled nicotine comes at an unknown cost, and that makes some people uncomfortable.
Policy makers and their constituents are concerned that youths may be drawn to new vapor products, whereas they would have presumably stayed away from cigarettes. They are concerned that if “vaping” were to become socially acceptable, all of the hard work done across the nation the past several decades to stigmatize smoking cigarettes could be undone. And there is some evidence to back that up. Cigarette use is on the decline with high school students, but “vaping” by high schoolers is increasing at a rapid pace. The concern is that high school students might eventually become real smokers, or that the stuff they are vaping is not a truly safe alternative.
Some argue that it is unfair or unsafe to expose employees or patrons of businesses open to the public to “second hand vapor.” But few, if any, legitimate studies indicate that second hand vapor truly poses a health risk. (Immediately following the Act’s passage, politicians who supported it were quick to point out that their fear of the possibility that second hand vaping might pose public health risks was a basis for passing the legislation.)
But it seems like the rationale is clearly more along he lines of the first thing that Dr. Michelle Pertucelli of Hartford Hospital said in comments to WFSB earlier this week:
“The concern with e-cigarettes in saying that they’re ok would be bringing back sort of a normalization of smoking. Something that was seen in the 50s and 60s. We’ve worked decades to get rid of that, to not have smoking everywhere.”
It is clear that this rationale won the day from the actual language of the act itself. Here’s why.
Prohibition of the use of any “electronic nicotine delivery system” or “vapor product” – it’s all about appearances.
The new law prohibits the use of a “electronic nicotine delivery system or vapor product” in most places open to the general public. But the actual nicotine content of a particular cloud of vapor is not what makes vaping in public places an infraction. Even devices which do not contain nicotine cannot be used in places where the ban applies. Take a look (my emphasis added):
“Electronic nicotine delivery system” means an electronic device that may be used to simulate smoking in the delivery of nicotine or other substances to a person inhaling from the device, and includes, but is not limited to, an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or electronic hookah and any related device and any cartridge or other component of such device;
“Vapor product” means any product that employs a heating element, power source, electronic circuit or other electronic, chemical or mechanical means, regardless of shape or size, to produce a vapor that may or may not include nicotine, that is inhaled by the user of such product.
- No Nicotine? No problem. The most compelling reason to conclude that the issue address by this legislation is the re-“normalization” of smoking is found in the actual definitions of the devices banned by the act. As you can see above, the definitions of the items banned from use in restaurants and concert venues are not banned because they contain nicotine, or anything in particular for that matter. The items are banned because they “simulate smoking.” So, according to the Act, these devices are still banned even if they merely contain nothing more than fog machine liquid
- Not just e-cigs. It is common for a legislature to be over-inclusive when defining activities or products that it would like to prohibit. And this Act is a perfect illustration of the tendency for lawmakers to do just that.
- Definitions matter, but sometimes most of the words of a definition are largely irrelevant. Anything that creates a vapor and “may be used to simulate smoking” is going to contain some sort of substance, and “simulating smoking” is presumably going to involve “inhaling” (unless your last name rhymes with Blinton) so we can easily shorten the definition of Electronic Nicotine Delivery System (ENDS) under the act to mean simply:
- 1) an electronic device that 2)may be used to simulate smoking.
- “Vapor Product” – inhalation NOT optional. As you can see from the actual definition of ENDS above, inhaling vapor from the ENDS is not necessary to define it as one. All that is require is that the item “may be used to simulate smoking.. to a person inhaling from the device.” On the other hand, the CT legislature found it necessary to create a separate definition for “Vapor Product” (VP) that is, although shorter, both more expansive and more restrictive than its definition for ENDS. First, let’s shorten the definition of VP like we did for ENDS, a “Vapor Product” is:
- 1) any product 2) that employs any electronic, chemical, or mechanical means 3) to produce a vapor that is inhaled by the user of the product.
To frame the issue appropriately, let’s consider fog machines. Isn’t it pretty clear that they are now outlawed wherever this new ban applies?
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