CLASH to Take Legal Action Re Ecig Ban in New York

CLASH is ‘Citizens Lobbying Against Smoker Harassment’. It is particularly active in New York. Audrey Silk is its chief spokesperson. CLASH has tried and tried to counter the bullying of Bloomberg’s Thugs, but without much success. Having said that, CLASH won a victory in the courts recently when New York State (not to be confused with New York City, which was Bloomberg’s warlord territory) tried to muscle-in a ban on smoking in parks. CLASH says:

When NYS [New York State] Parks announced that it would be imposing an outdoor smoking ban on its properties without benefit of legislation (no vote on a law by the state lawmakers) we knew we had them by a technicality:  Unlawfully exceeding their authority.  And we won.”

It is against that background that we must observe the latest attempt by CLASH to stop the bullying. The legal battle concerns the Ecig ban in New York City, and, again, involves a technicality. The technicality is:

Once again, this time in the case of the NYC ban on e-cigs, the opportunity to overturn it rests on a technicality:  “Every local law shall embrace only one subject.” (As per the NYS Constitution and NYC Charter)” 

CLASH hold that ‘personal vaporisers’ (also generally known as e-cigs in some cases) do not emit smoke, and therefore any law to ban them cannot be based upon the protection of workers against smoke. If they are to be banned, then they must be banned for other reasons. In other words, ecig bans are ‘a different subject’ from tobacco smoke bans.

I suggest that you ‘READ ALL ABOUT IT!’ here:

http://www.nycclash.com/E-CigLegalFund.html

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The organisers are looking for contributions to a Legal Fund to fight the case. I have contributed $50 via paypal. Am I crazy? What has a legal tussle 3 000 miles away got to do with me?

First, can I say that I have not put up this post to raise funds for CLASH. Anyone who wants to contribute can or not as they see fit. My own contribution is connected to the battle with Bolton Local Authority. The Zealots in Bolton seem to me to be pulling the same trick – appending a new ‘law’ to an old one as though the two ‘laws’ concern the same subject. It must be made clear that ‘personal vapourisers’ (English spelling!) are NOT being banned by the council because they emit smoke. The reason for such a ban must be clear, specific and reasonable, otherwise it is bullying. Elected Representatives have no authority to be tyrants, especially as regards employees.

As we have seen, there is the Local Authority Ombudsman to appeal to, but also there is the Minister for Local Authorities (or whatever), Mr Pickles, as well.

——-

If you look at the CLASH site, you will see at the end that there are a number of ecig company ‘sponsors’. You might reasonably think that the Zealots in New York have made a big mistake. The city is huge, and therefore it is in the interests ecig groups to fund a challenge because the market is huge. Note that, in the UK, the Zealots have chosen smaller targets, like Wigan and Bolton. They have not chosen cities like Manchester, Liverpool and London. That is deliberate. They wish to establish a ‘principle’ of a sort, which they will promulgate throughout the land. The semi-principle is that, “It is easy to ban ecigs. No one will complain”

But I must say again that this is not my battle. I am not a vaper. I am just trying to help. I’ll go quietly as far as I reasonably can.

It seems important to me that ecig associations should fight bans such these Wigan and Bolton bans with all their might. The bans start small, but rapidly escalate. Note how smoking bans started small in Ireland. Had there been massive protests there, smoking bans would have gone no further in Europe. Then the attack moved to Scotland. Again, there was no significant reaction. Then to the rest of the UK, and then throughout the whole of Europe. It was all organised – but it depended upon success in Ireland and Scotland. Ecig associations have been concentrating on the big picture at EU level, which is of course right. But the rot sets in at the bottom and spreads and spreads.

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21 Responses to “CLASH to Take Legal Action Re Ecig Ban in New York”

  1. golfkahn Says:

    THIS is a fight I believe we CAN win. If NYC’s ban is thrown out, we can go to Chicago, Los Angeles, San Francisco, etc. Plus, it could freeze many Ban movements on-going at the State and Local level. All any Politician needs to know is that what they are thinking of doing has been found unconstitutional. This could be the breakthrough everyone is looking for.

    Bravo Junican!

  2. michaeljmcfadden Says:

    Well done to Audrey Silk! 🙂

    {Audrey was actually the very first political smoking activist I met in person! I went up to NY to a City Council hearing in 2000 and we both testified.}

    🙂
    MJM

  3. waltc Says:

    Her case is legally savvy for New York City but, as for more general application, be aware that the whole thing is based on a specific provision in the NY state and NY city constitutions that all laws must have only one subject;. From which it then follows that an ecig ban (proposed for reasons having to do with their appearance, the appearance of the people using them, and their potential to prevent smokers from absolutely 100% quitting) cannot (as they’ve attempted to do) be folded in to the existing law banning actual smoking whose purpose was to protect the health of bystanders from the perils of secondhand SMOKE.

    Technically, then, the NYC council could go back and make a totally new law against e-cigs on the grounds of appearance etc. (which might itself give rise to other constitutional arguments). In other words, Audrey’s angle won’t work for other locations unless they have a similar rule of one-subject-per-law only.

  4. waltc Says:

    On second thought, since, as you say, other communities are also trying to add the ecig bans to the original smoking bans, Audrey’s angle may well work elsewhere or another equally effective angle can be found on which to contest these new bans..

    • junican Says:

      I think that the important thing is to get a legal judgement anywhere that ecigs should be regarded as separate entities, not lumped in with tobacco products. As we have said many times, caffeine is similar to nicotine and can be similarly isolated in the laboratory, but no one in their right mind would describe a cup of coffee as a cup of caffeine.
      I suppose that the City might argue that it is not a matter of what is being banned but about where it is being banned. In that case, it might be a matter of precedents. Have other laws been amended in a similar way? Are there laws which have NOT been amended in a similar way, but rather introduced as new laws?
      It is all very uncertain. For example, as you know, people in the UK are not allowed to carry ‘offensive weapons’, like guns and knives, in the streets. Would it be OK to add ladies handbags to the list of ‘offensive weapons’ on a whim?

  5. beobrigitte Says:

    I am having a little problem – I strictly do not do paypal.
    But then, there is the option to use the good old fashioned postal service.

    We can’t say that NYC is none of our business – it already is! The anti-vaping bandwagon is on the roll here, too!

    • junican Says:

      The EU have done the same trick – adding ecigs to tobacco products when they simply are not tobacco products. It makes no sense. If the EU want to introduce a directive about nicotine products they should introduce a new directive.

  6. michaeljmcfadden Says:

    I’m not certain of this, but I believe that it’s fairly common, at least here in the States to define premium cigars as NOT being tobacco products in order to skit around certain tax laws etc.

    – MJM

    • junican Says:

      If that is so, then it must have some justification. It would be interesting to know what that is.

      • michaeljmcfadden Says:

        Ahh! OK… I think I’ve seen more on this, but here’s an excerpt from a 2011 email from Congresswoman Tammy Baldwin noting the following:

        “The Traditional Cigar Manufacturing and Small Business Jobs Preservation Act (H.R. 1639) would exempt traditional large and premium cigars from FDA regulation and from user fees assessed on tobacco products by the FDA.”

        – MJM

      • Junican Says:

        Well spotted. MjM! It makes sense.

      • michaeljmcfadden Says:

        Heehee… I’m far from perfect, but I do a *fairly* good job at being able to back up my “thinkings” from the material in my files. :> Good enough at least to drive GeneB to crazed frothiness in his postings. LOL! For a bit of fun reading, you might want to check out this story from your own rough neck of the woods, Derbyshire, and see his commenting and my responses in the last day or so:

        http://www.derbyshiretimes.co.uk/news/health/exclusive-fury-as-failed-40k-pregnant-smoking-scheme-to-be-rolled-out-1-6508901

        The nice thing about our side of the argument is that it’s simpler because we can stick to the truth. The other side has a lot more money to throw around so they can afford to get caught in lies and brush them off — we don’t have that luxury so we’ve got to be pretty on the button every time. Any interrogator will tell you: it’s MUCH easier to keep your “story” straight if it’s the truth than if it’s a collection of lies. The lies of the Antismokers are what brings them down every time, and over the year those mountains of lies have grown larger than the “mountains of studies” that they always claim support them.

        Ultimately that will be their destruction.

        – MJM

      • Junican Says:

        I read your comments on the Debyshire rag – I see your point – “And answer came there none” to your challenges.
        Couldn’t resist leaving a comment myself.

  7. CLASH to Take Legal Action Re Ecig Ban in New Y... Says:

    […] Having said that, CLASH won a victory in the courts recently when New York State (not to be confused with New York City, which was Bloomberg's warlord territory) tried to muscle-in a ban on smoking in parks.  […]

  8. Dragonmum Says:

    Am completely ignorant re U.S law but here in U.K “precedent” is cited extensively to strengthen a case. I so hope this case succeeds – we vapers really need to push our case world-wide.

    • Junican Says:

      American law is very similar. There are two interpretations of the word ‘precedent’ here. I was referring to ‘precedent’ in the sense of what the City has done before. You are perfectly correct in pointing out that there may also be legal precedents concerned with situations where an ‘act’ has been passed wherein something is banned separately when it could have been added to an existing ban because the ‘where’ is the same in both instances. That is where reasons for bans become important, and where penalties etc apply.

  9. Former Winston Man Says:

    Good luck CLASH. Great efforts and ideology by a committed group of citizens with a “pair”. Think the fight is worth the energy necessary to combat the technicalities and lies
    the enemy is using to keep passing draconian bullcrap. I’m in. Anything I can do to help?

    • Junican Says:

      I don’t think that there is anything that we can do directly except perhaps donate some cash to CLASH if you wish.

  10. Audrey Silk Says:

    First of all, thank you so much for posting this Junican and thank you everyone else. Yeah, hate to say it, being a usually modest person, but what’s needed most right now are legal fund donations. And to talk it up 🙂

    • Junican Says:

      Good to hear from you, Audrey. Be assured that we support everything that you are doing, even though we are few in number. But we are only few in number because few people have realised that “It could be you!” as yet.
      I fear that the Zealots will gain power. I really mean that. Our politicians are so inept that they cannot be relied upon to stop the Zealots actually gaining physical power. If they do, then violent revolution will most assuredly follow.
      Good luck with the legal action.

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