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Published on February 21st, 2016 | by Jimmy Hafrey

New York Court Rules that Vaping Is Not Smoking

It was bound to come down to a judge’s ruling eventually, but we didn’t know it would happen this soon. In New York, a judge just ruled that vaping is not smoking and the two words cannot be used interchangeably. New York currently bans smoking in most public areas, but according to the judge that doesn’t mean vaping is automatically banned as well.

After a vaper was cited for using his device on a subway platform, he challenged the issue in court. In “People vs. Thomas”, the judge said that New York law defines smoking as “the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco”. However, the court said that this definition excluded vapor devices.

“An electronic cigarette neither burns nor contains tobacco,” the court noted. “Instead, the use of such a device, which is commonly referred to as ‘vaping,’ involves the inhalation of vaporized e-cigarette liquid consisting of water, nicotine, a base of propylene glycol or vegetable glycerin and occasionally, flavoring.”

During the case, the state argued that the ban on vaping should be understood and there was no need for a specific prohibition on vapor devices because “the courts of New York have yet to make a determination as to whether electronic cigarettes are to be viewed any differently under these sections than tobacco cigarettes.”

However, the judge ruled that this argument was invalid. After all, vapor devices just do not match up with the state’s current definition of “smoking” and cannot be treated as tobacco products if they contain no tobacco.

In New York City, leaders have specifically included bans on vaping under the Smoke Free Air Act. However, statewide laws are yet to follow suit. Last summer, the state considered a bill to add restrictions against using vapor devices in public places, but the bill died in the Senate.

Now that a judge has formally ruled that vaping does not equate to smoking, we will likely see a statewide scramble to redefine smoking or tack on additional language to smoking prohibitions to insure that vaping is also restricted. For now, we can all pause and celebrate this small victory from one New York judge that fortunately had enough common sense to stop this ridiculous charge in its tracks.

About the Author

Jimmy, lover, blogger, vaper and ex-smoker. I’ve been blogging about and supporting Vaping since 2009. They changed my life and I think history will show them as one of the most significant public health invention of the 21st century.

44 Responses to New York Court Rules that Vaping Is Not Smoking

  1. Gary Campbell says:

    Vaping is not smoking!
    quit trying to make it illegal!
    Quit trying to add the stupid cigarette tax to it!


    • Willy says:

      And once upon a time smoking wasnt bad for you… give it a few years ^^
      Not everyone want to go and inhale the rests of what other smokes and
      it is really easy to modify vapers to illegal substances…

      • John says:

        I’m sorry but even though they said back then that smoking cigarettes wasn’t bad for you, you have to be pretty stupid to not think inhaling burning leaves is not going to be bad for you. So the only thing that that statement does is make the generation that thought that look really stupid.

        • WINDYGIRL52000 says:

          You son are the stupid one!!! When i started smoking years ago there were no warnings on the cigarette packs at all. For years they put no warning on them until people began having breathing problems and developing lung cancer. Don’t put your ignorance of something that you know nothing about ok??????? What about weed??????? People smoke it everyday, i never have but you may have done so before. What is the difference in that or smoking a cigarette??????? Other then the weed gets you high, it’s still burning leaves. Anything a person inhales into their lungs is dangerous and hopefully you will learn more facts before you run your mouth about something you have no knowledge of…. God bless and have a beautiful day!!!

          • Kim says:

            The problem isn’t really the “burning of the leaves”. What the biggest concern is the tar and the 2000 + carcinogens that are added to a cigarette.

          • Shella says:

            I was born in the 60s & they were already being called cancer sticks & coffin nails. You can say folks didn’t know how bad, but not that they didn’t know they were bad at all! That’s just stuff said by folks suing the cig companies to avoid taking responsibility for their own bad choices. I also just have to ask, do you have an OCD thing with question marks or what?

          • Derek Bernier says:

            Please take your own advice about running your mouth on something you evidently have no knowledge of. Vaping is not smoking and involves no combustion at all which is the biggest difference between the two and is a huge factor that makes smoking so dangerous. So since anytthing a person inhales is dangerous I guess we should just stop breathing. Your generalized sweeping comment is pure ignorance on your part and a perfect example.

          • Allison says:

            Smoking weed is not burning leaves. It is burning the bud. You are the one who said not to talk about things you know nothing about, right?

      • Cher says:

        This is the 21st century, modern medicine is not the same as it was in the early 20th century. So you saying “back then people thought it was healthy to smoke” is not a relevant to this day, back then doctors thought lobotomy was a good thing too. And before that, doctors used to drain blood to purge you of illnesses….do you understand what I mean? Medicine now is factual, and scientific, not based on myths and backwards logic.

      • blunthonesty says:

        Then don’t leave your house, simple as that. You walk down the street and inhale god knows how many different toxins everyday from cars sitting idle. I could understand if we were talking about a bus, a subway cart, but sidewalk, outdoors…we all have a right to use it as we see fit within legal parameters.

      • Carter Caffrey says:

        Smoking anything is bad for you. Its the carcinogens that hurt you. Which is caused by the inhalation of fire pretty much. You can smoke banana peels and coffee grounds and be at risk for health problems, maybe not as bad as if you smoked cigars or cigarettes or yes, even smoking weed.
        Vaping is inhaling water vapor, propylene-glycol and vegetable glycerin and added flavors.
        There have been some studies that say vaporizers **MAY** cause popcorn lung because of the super sweet flavors put in oil.
        So in a perfect world nobody would smoke or vape or do drugs and alcohol.
        But its not a perfect world, So I would rather people vape than smoke because its proven to be LESS harmful, Yeah it probably is still harmful, and just not doing that stuff is the best way to stay healthy.
        Pick your battles wisely.
        Easy to modify vaporizers to have illegal substances in them?
        You know you can just stick dry bud, wax, THC oil in a vape right? You can only use that stuff with a vape pen specially made to vape those things, if you try and stick THC oil or MOST cbd oils in a Mod only meant for E-juice you will break your mod.
        Please educate yourself, not for the world and everyone else…but for yourself.

    • grace says:

      If I got it right, a vape has nicotine?? which is an alkaloid poison that occurs in tobacco; used in medicine and as an insecticide. It acts as a stimulant in small doses, but in larger amounts blocks the action of autonomic nerve and skeletal muscle cells. Vaping may not be what you can call smoking but will still harm us, the vaper and the people around him/her. Just like using a cigarette in the old days, they won’t tell you its harmful unless many had died and after several research.., which took ages.

  2. Mj says:

    Some major flaws with this article. This past summer (2015), june-July ish… New York state has already attached wording to the clean air act, which prohibits vaping in all areas that smoking is banned. The clean air act is statewide. I applaud the judge, and stand by his decision, but it doesn’t state whether or not the law is being changed via the state supreme court.

  3. Drew says:

    Well no #### Sherlock, of course Vaping is not Smoking, that’s why it’s called Vaping, not Smoking. Bunch of genius idiots going around. Good that the court’s had enough brain’s to notice the difference, I’d much rather passive smoke nicotine without 4000 added chemicals, If i’m lucky enough to even get that because it dissipates in seconds. If they ever do make it illegal it’s only because tobacco companies have got in there with their money to make the case it’s worse, so people go back to smoking cigarettes and they make a killing once more. Logic 101.

  4. Kody says:

    Still, don’t Vape inside. It still bothers everyone around you and is a dick move

    • Doesnt matter says:

      As well child crying in restaurants. I get more annoyed with people talking loud (which reflect a huge misrespect for the others) and child crying, than a bit of flavoured vapour.

    • Confused says:

      I am an ex-smoker. I do vape. Not trying to say that this doesn’t bother you. Just curious as to what bothers you about vaping?

      • Dylan says:

        I’ve been a vapor for a little over a year now. But I have heard that some people around vapors can possess an allergic reaction to propylene glycol. Also known as a PG allergy. I usually don’t Vape in public unless it is a Vape store which allows it, or a patio area at most restaurants and bars.

        • Rob says:

          PG allergy is something that people inhaling vape get, not those around people vaping. I have a PG allergy and it just causes me to get a sore throat when I vape but there’s no way people around me while i’m vaping would be exposed enough to be affected.

        • Samantha says:

          I don’t vape inside anywhere that smoking isn’t allowed but as far as allergies go people are allergic to perfume and it isn’t banned.

      • Willy says:

        tbh it vaping where I am bothers me. First because noone knows what the effects really are. Consider that smoking was not bad for you either… we all know the effects today. Second, you dont know what people have in there vapors, its not hard to make it hold other substances and I dont want to inhale that stuff, or let my kids do…

        • Pete says:

          Countless studies have been done on “WHAT THE EFFECTS ARE”.

          Health New Zealand knows what’s in it. An Indoor Vapor Air Quality Study knows what’s in it. A few Medical Journals have published What the effects are. Public Health England recommends British citizens vape to kick smoking habbit..

          You, sir, have either been misled or have not done your research.
          Do you trust what the government says? Do you trust what the media says? Did you personally read any scientific studies, or did you just see a few scary articles in the news?

          SMOKING was always bad for you and people were idiots. How could you not realize that breathing in SMOKE wasn’t bad? Never met a fireman before? Can’t imagine why they’ve been wearing breathing masks since 1863?

  5. Matt says:

    I’ve been a smoker for about 15yrs and been vaping for a little over a year. There is a big difference. My wife its allergic to smoke so i don’t smoke around her. Even just the odor on my hands and clothes have been enough to give her a cough. But I can use my vape around her all day long without it bothing her. I applaud the courts for finally noticing the difference. 1 point for vaping on the board.

  6. Matthew Broome says:

    Do you by chance know the date, case number and Court this ruling was issued from??

  7. Graeme Tucker says:

    I have found nothing after 2013 regarding New Yorks’ Public Smoke Free regulations mentioning e-cigs. If there is such legislation banning the use of e-cigs, they’re not making it public knowledge. Here’s what I found that is relevant “The Department is actively working with college campuses and other areas that have policies against the use of cigarettes to explicitly include e-cigarette bans in all of their literature and regulations and materials, and hopefully we can catch this before this becomes yet
    another behemoth industry with power to sway public opinion in ways that we know are not helpful”

    State of New York
    Public Health and Health Planning Council
    October 3, 2013

  8. Eric says:

    This is all about Money… They don’t want us to quit smoking… If they can’t stop us from vaping, they will try to tax it to make up for all the taxes they lost from us not buying cigarettes. They don’t care about our lives, They only care about TAXES !!!$$$$$!!!

    • Pete says:

      Eric, we blame the cigarette/tobacco companies way too much here. Yes, it is warranted.

      But you know who’s behind much of this? PHARMACEUTICAL companies.

      They can’t sell you as many lozenges, patches, gums, and pills to quit smoking anymore. Nicotine Replacement Therapy has about a 95% failure rate. (my 95% figure comes from a study in the UK about 6 years ago)

  9. Peggy says:

    Thank goodness it’s a lot healthy for you

  10. Bb says:

    Former 2 pack a day smoker, gladly now a vaper. While I definitely advocate vaping as I am significantly healthier now that I’m off cigs, and I’m glad we are making steps to admit vaping is NOT smoking, I still don’t vape indoors in public places. It’s common courtesy to not subject others to my choice to inhale nicotine, PG/ VG and flavorings. I don’t get why other vapers don’t seem to understand this issue. I also wish vapers realized that every time we try to push the limits of our rights as vapers we turn more people against us. You want vaping to be more universally accepted and have more people on our side when the gov comes to tax the fuck out of us? Then don’t be a vape douche. When John Doe goes to vote on whether we should tax vaping into oblivion so you want him to picture that time someone was blowing clouds right next to him in a cramped indoor space? Like everything else, this is a two way street. If we want people to respect our right to vape we should also respect their right to not have to vape with us in indoor public spaces. It’s that simple.

    • JP says:

      Well put buddy. I’ve also been trying to figure out why it is so important for some to be able to vape indoors and around people. I guess some people just don’t understand common courtesy nowadays.

      I don’t think anyone would want to walk into a restaurant, bar or store that is full of vape smoke. It’s just not sanitary. Common sense people. Respect public space and be decent about vaping so we can lose the bad stigma attached to it. Vaping will never be taken seriously if you have ignorant vapers just trying to blow their smoke anywhere they want and acting like it’s their right to vape.

  11. w.h.w.m says:

    The fumes from smoking or vaping cant be as bad as the 100 cars that drive past you when your walking down the street

    • JP says:

      Either way it’s not good to have smoke in closed environments. Good or bad. It’s not sanitary.

      • Eric says:

        Vaping is not smoke. It’s harmless to me and those around me. Been vaping for over 5 years now and never felt better since quitting smoking…

  12. BD says:

    People that douse themselves with cologne are far more offensive to me than some scented water vapor. I’m highly allergic to that crap, yet I cannot complain about it, as it would be “trampling on others’ rights”. What about the rights of those who wish to vape?

    Face it. The whole stink about vaping is due to people being easily manipulated by the bought-and-paid-for media and politicians, and the dollars that get tossed their way by Big Tobacco and other conglomerates that cannot adjust their business models to fit the new tide. Follow the money, and it’ll lead right to one thing: TAXES, and the loss of many millions due to people switching to a healthier alternative.

    To hell with the death merchants…

  13. Pwhitehilll says:

    I don’t care what it is I shouldn’t have to have to inhale someone else’s habit, if people had the common sense and decency to keep it to themselves it wouldn’t be an issue, bottom line I have never smoked anything in my 41 years and I don’t plan on it so why should I have to inhale someone else’s exhale of chemicals.

    • Rick says:

      What chemicals? It contains Propylene Glycol, Vegetable Glycerin, Nicotine, and food grade flavoring. The PG + VG break down into water vapor, the nicotine is absorbed by the vaper (which by the way most people use around 20% or less of what’s contained in a cigarette) and what you smell is scented water vapor. That’s it. While I understand that you don’t want to breath in unfamiliar substances I don’t think you really understand what it is. You’re exposed to breathing in more chemicals when you use Windex

    • Ron says:

      Well, why not go somewhere else where there is no vaping? Advocates against smoking are carrying this too far. First, people complain because they don’t want to have to inhale cigarette smoke in public places. That’s been agreed upon as damaging. So, cigarette smokers take a healthier route by vaping and now there are complaints about that as well. No compromise whatsoever. The world shouldn’t have to stop turning because YOU feel the need to be pacified. STAY AT HOME OR GO WHERE THERE IS NO VAPING!

    • Eric says:

      No chemicals, Nothing in them can hurt you…

  14. James Doorn says:

    I cannot find the name of the presiding Judge anywhere. Has anyone seen it?

  15. TD says:

    People who vape in public that want to argue with people that its safe, it’s not smoke, blah blah blah are just giving other respectful vapers a bad rap. If you can’t smoke, don’t vape. You’re just being a D-bag….

    • Eric says:

      People need to be informed that it is harmless. A D-bag is the one who never smoked a day in their lives and creates ginormous clouds of vapor.

  16. Barry says:

    When I was introduced to the world of Vaping, I had been a smoker for about 37 years. Health wise and cost wise it was literally killing me. I had to that point tried quitting by trying to go cold turkey, hypnotism, acupuncture, nicotine gums, the patch…you name it I tired it, and nothing worked. A little over 2 years ago someone I met was using a device, which at first I thought was a medical apparatus like an asthma inhaler. They told me what it was and I went home and used the internet to research. I made a decision to try it for myself after a few weeks of thinking about it…that was Jan 27 2014. I have not even taken a puff off a cigarette since that date.

    My breathing has become much easier, and for my own bronchitis I no longer require an inhaler. When I start to get what feels like a cold forming in my lungs, I switch to a menthol juice, and inhale that for a few days, and it seems to loosen up and stop the cold from getting worse. (I liken it to using a vaporizer with the medicated ointment ). I have finally been able to kick the unhealthy habit of smoking cigarettes. My clothes and hair no longer stink, I can taste food again for the first time since I was 13, my sense of smell(which I never realized was gone) has returned. I can use this in my home around my wife who never smoked…instead of going outside, rain, snow, sleet or hail like I did to smoke cigarettes.

    Nicotine is the only “chemical” in the juice and vapor, and even it has recently been linked on its own (without cigarettes) to help people with Alzheimer’s and Parkinson’s with memory and returning cognitive function. This may be a way for Big Pharma to remarket the patch and gums however.

    Other than Nicotine, the juice also contains PG and VG. Propylene Glycol is also used in various edible items such as coffee-based drinks, liquid sweeteners, ice cream, whipped dairy products and soda. Vegetable Glycerin are found in cough syrups, elixirs and expectorants, toothpaste, mouthwashes, skin care products, shaving cream, hair care products, soaps and water-based personal lubricants, as well as a vast number of food products as a sweetener ….so when cooking either of these, they give off a vapor in the form of steam and no one complains about that. Don’t believe me and want to continue the argument that the vapor from the juice is harmful…look them up first before doing so, as educated vape enthusiasts already know that any negative comments about vaping are made from ignorant people who do not know better.

    It is big business tobacco and government, because of loss of tax revenue, that are pushing the false information being released to the public. As studies are already showing, what any of us have known since we researched it ourselves, before trying it…it is NOT harmful to the person vaping or persons around them like second hand smoke is. Because current legislation is forcing vapers to occupy the same areas as smokers in order to use them, they are essentially putting Vape enthusiasts in “harms way”. I don’t agree with whipping it out and vaping in public places such as Malls, the office, banks, grocery stores etc…but when i walk outside I do not feel I should be forced to be put in a special area with a smoker in order to use my vape. As Legislators continue to pressure vape enthusiasts to observe “smoking laws” they may be putting themselves in a libelous situation where their own procrastinating ignorance is misrepresenting injuriously the health of the new society of Vape enthusiasts. After 37 years, I do not feel I should be forced to inhale second hand smoke either anymore…it is why I did the research and switched in the first place.

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