Looks like Stephen Dorff can't suck on his Blu to take the edge off that hellish train ride to the Hamptons. "The LIRR's Legal Department advises that we interpret the ban on lighted cigarettes on outdoor ticketing, boarding or platform areas of a terminal or station to apply to electronic cigarettes," the LIRR's VP for Public Affairs Joe Calderone writes in a letter to the Long Island Rail Road Commuter Council. But hold on; let's look at the language of the law.
Here's what the rule cited by the LIRR's Legal Department states:
No person in a terminal, station or train shall...
(o) burn a lighted cigarette, cigar, pipe, or any other matter or substance which contains tobacco or any tobacco substitute on a train or in any indoor area within a terminal or station not specifically designated as an area where such conduct is permitted;
The problem of course, is that nothing is "burned" in an e-cigarette—they operate without any combustion.
"The LIRR's ban on e-cigarette use is arbitrary and not based on the science," says Gregory Conley, an attorney and legislative director for The Consumer Advocates for Smoke-Free Alternatives Association, a group that promotes the use of e-cigs. "E-cigarettes do not burn anything, and therefore it is absurd to claim that the current law covers these products." Conley added that the association is exploring its legal options.
Ilana Knopf, the Director for the Center for Public Health and Tobacco Policy at New England Law—Boston, declined to comment on the language of the LIRR's law, noting that the Center is barred from discussing specific laws or policies. She also declined to say whether future smoking bans that would successfully ban e-cigarettes should include the language of "burning."
But as a general matter, Knopf said the Center supports the idea of smoking bans extending to electronic cigarettes. "It's an evolving issue, and there's so much that's unknown about e-cigarettes... but in general it is positive for public health to include e-cigarettes in smoke-free policies. That you're inhaling this substance that's not regulated is terrifying."
Electronic cigarettes contain nicotine (and/or other substances, like fog juice, flavoring, and water), but not tobacco. Products containing nicotine derived from tobacco are regulated by the FDA under the Tobacco Control Act.
The FDA was supposed to release their proposed rule on e-cigs in April—which could stipulate a wide variety of regulations, from how much nicotine e-cigs can dispense, to what flavors can be sold, to whether they can be marketed on TV—but that date has since been moved to October. In the meantime, the second-largest tobacco company in the country launched their new e-cig line. E-cigarettes are projected to subsume 1% of the cigarette market this year, or 2.4 billion cigarettes, up from 2012's half a percentage point, translating to around $1 billion in sales.
The MTA's law regarding smoking seems even less suited to cover e-cigarettes:
No person on or in any facility or conveyance shall…
2. smoke or carry an open flame or lighted match, cigar, cigarette, pipe or torch;
A story in the New York Post erroneously reports that the LIRR's justification for the ban comes from a 2011 extension of state smoking laws to exclude smoking from "public means of mass transportation," but under that law, "smoking" is defined as "the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco."
The LIRR's interpretation of the smoking statute was prompted by a letter from the Long Island Rail Road Commuter Council, which cited "a number of public and private inquires" regarding e-cigs on the LIRR.
An LIRR spokesman told us that the agency has not received any complaints about e-cigs, nor have they documented any incidents in which people were ticketed for using them. The LIRRCC did not respond to a request for comment.
You can read the correspondence between the LIRR and the LIRRCC below.