U.S. News

12.20.13

New York’s Nanny-State E-Cig Ban

New York’s city council voted to ban e-cigarettes in public. “Vaping” enthusiasts gathered at City Hall to mourn what could have been.

It looked as though New York's City Hall had been overtaken by smokers intent on taunting Michael Bloomberg one last time. But these weren't smokers, at least not anymore; and they weren't smoking, they were "vaping," a term to describe using an e-cigarette to inhale the vapor produced by a liquid mix of nicotine, water, glycerol, propylene glycol and flavorings. The semi-non-smokers had descended upon City Hall to protest an effort to ban e-cigarettes in public spaces, just like regular cigarettes were banned over ten years ago. They knew the City Council would vote to restrict the use of e-cigarettes, they all told me when I arrived; when the 43-8 vote finally came in, none of them expressed surprise.

On the balcony of the chamber, I came across Ilona Orshansky, the owner of Williamsburg's Vapor Lounge New York. Orshansky puffed on a device that looked like a dental tool. Whenever she moved, she would leave behind a trail of small vapor clouds that resemble smoke only to the attention-challenged. Orshansky had been living in San Francisco until a fateful trip to New York earlier this year, when she lost the vaporizer she had gotten hooked on a few months before. That vaporizer led Orshansky to quit smoking, and unable to live without it for the remainder of her trip, she searched all over Manhattan for a replacement.

She couldn't find one. That's when the idea of moving here to get a piece of the surely soon-to-be-crowded vaping market came to her. She told me it took her less than a month to put the Vapor Lounge together and within another month, she was more than breaking even. Later, outside City Hall, Orshansky held a hand-drawn sign which read, "Stand with science not with ignorance vapor is not smoke."

Near the staircase in the back of the chamber stood Norman Siegel, dressed like a Goodfellas extra in a grey suit and black shirt, no tie. As I approached, I heard him tell another reporter, "I'll bet you a good old New York egg cream!" The former director of the New York Civil Liberties Union, Siegel was not at the chamber to represent a client. He was there, he told me, because "legally, [this issue is] a liberty interest. It's in The Constitution that government can't deprive citizens of their liberty without due process. . .  Potentially, the overreaching here by the City Council could be illegal." Siegel said legislators probably shouldn't be making laws about e-cigarettes until they know what the effects are. "Let us decide for ourselves,” he said. “Inform us!" Supporters of the ban say the unknowns are the exact reason e-cigarettes should be forbidden; legislators shouldn't allow potentially harmful substances into the air and the lungs of citizens until they know what the real effects are. 

A few feet away from Siegel, among the crowd of smoking cessation evangelists, a stern-looking man coughed violently. Those vaping glanced at him, concerned. Yes, he told me, he was a tobacco lobbyist. He asked me how I made such a good guess. And then refused to speak on the record.

The problem is, there isn't really any hard evidence that says nicotine vapor doesn't have the same effect as smoke.

Dispassionately observing from the far corner of the chamber balcony stood still more lobbyists. They favored the ban, and they told me Big Tobacco was part of the reason they were present. Robin Vitale of the American Heart Association explained "Big Tobacco is playing in field. Every major tobacco company now has their own e-cigarette that they're manufacturing and selling." She showed me a chart with multi-billion dollar projected revenues for large tobacco companies selling e-cigarettes in the next ten years. "This is not just the mom and pop shops. This is about Big Tobacco in many ways." Kevin O'Flaherty from the Campaign For Tobacco-Free Kids explained his position that, "there's no sense in opening up public places to what could be a contaminant…more importantly, it could re-normalize smoking real cigarettes which is one thing we can't afford to go back to." O'Flaherty dismissed the ‘big brother bans everything’ crowd. "I think those people probably say that about anything the government does. I don't know them, but I think they might. The tobacco companies and the e-cigarette companies can't say that this product helps people quit," he said.

But they do say that, even if all of their evidence (so far) is anecdotal. Vaping supporters believe that the ban is much more and much worse than just another instance of the nanny state asserting its power. You may think it should be your choice to buy a Big Gulp or eat trans fats, but nobody claims that doing either of those things could save lives. That is not the case with e-cigarettes. Lawmakers, opponents of the ban said, ignored mass evidence that e-cigarettes help people quit smoking each day. They claim the ban would force reformed smokers into situations where they would be surrounded by cigarettes; something that might tempt them to fall back into their old habits, and would certainly negate the benefits of abstaining from traditional tobacco by suffocating them with second-hand smoke. 

The problem is, there isn't really any hard evidence that says nicotine vapor doesn't have the same effect as smoke—at least to that long-suffering group, The Bystanders. To the contrary, a 2012 German study found that while they cause less air pollution than traditional cigarettes, e-cigarettes do still pollute: “It seems reasonable to assume that bystanders are exposed to the released vapor and thus 'passive vaping' is possible." 

Roaming the chamber balcony, alternating between sipping a green beverage from The Juice Press, eating a lollipop and vaping, was Talia Eisenberg, co-founder of Henley, a vaporizer and e-cigarette liquid provider that boasts the only vaping cafe in Manhattan, on Cleveland Place. Eisenberg and her partner, Peter Denholtz, met in Boulder, Colorado, where Eisenberg was intending to spend "a year or two" cleaning up her act after falling into some bad habits during her days as part of New York's party scene. Boulder was attractive because "it's beautiful and peaceful and people are nice—the opposite of New York—and my mother's there." Eisenberg got healthy, she told me, "I figured out who I was out there, you know?" but she couldn't kick her smoking habit. Not until she got vaping, that is. 

Denholtz explained the two met through mutual friends, "I was vaping on e-cigs and she had vaped before. Then she started vaping more as she got off of smoking, and Talia was interested in doing something in business and starting another company, and the e-cigarettes came up. First we were going to make just a small little business out of a website and see what we could do, and then through all of our contacts, all of a sudden we found ourselves supporting nightclubs around the country and big hotels and distributions through convenience stores and such, and the next thing you know, we're on multiple trips to Shenzhen and working with manufacturers and creating products." 

Eisenberg cut in, "It's bigger than that though, it's not just a product that I find interesting or something. I like to find problems in society and in the world and then find solutions, and from that create a business."

Eisenberg and Denholtz reiterated many times that with Henley, they are "starting a culture." Eisenberg suggested to me the image of smoking in the cold, huddled with a bunch of other smokers. It's how you make friends as a smoker. In that situation, you're able to relate in a way that you perhaps wouldn't be were you not part of a communal experience. That sense of community is, they tell me, what Henley is about. Inside their sprawling shop, which is decorated like Austin Powers' country cottage, people are just hanging out and vaping. More than 80 varieties of e-cigarette liquid are displayed behind the counter like little works of art, or perfume bottles. People, strangers, are talking—and not into Bluetooths or iPhone screens.

The city council's decision to ban the public use of e-cigarettes is highly unlikely to negatively impact Henley. Now being one of the few safe places left to vape, Henley may even get more customers.