The Uncertain Future of the E-Cigarette Industry in New York
March 18, 2019
E-cigarettes and vaping have received a very mixed reception in New York. While the multiplying number of vape shops and booming e-cigarette sales would suggest a surefire rise for the industry in our State, growing opposition from the public and multiple levels of government could nip the industry in the bud.
In 2017, Governor Cuomo signed into law an amendment to the Clean Indoor Air Act prohibiting the use of e-cigarettes and vaping products in any setting where the smoking of traditional tobacco products is prohibited. See Public Health Law §§ 1399-N, 1399-O. This includes most indoor settings as well as certain outdoor, public and work places. Today – in response to growing public concern over health effects and teenage addiction to vaping products – the State is now considering a ban that would strictly regulate all but a few of the available “vape juice” flavors (particularly, kid-friendly flavors like bubblegum, breakfast cereal, and cotton candy) in an effort to make vaping less attractive to young consumers. See, Brodsky, Robert “LI vape shops would close, some say, if NY bans flavored e-cigarettes”, Newsday, Nov. 9, 2018.
At the local level, a growing number of Counties across the State, including Nassau and Suffolk Counties, have raised the minimum age for the purchase of tobacco products (including e-cigarettes) from 18 to 21. The Town of North Hempstead also recently joined that list. See Town of North Hempstead Code § 54-1 (2017). Certain counties, like Suffolk County, are also currently weighing options for enacting their own restrictions on the sale of flavored vaping products. See Tyrell, Joie “Rally backs bill to limit flavored e-cigarettes in Suffolk County” Newsday, December 13, 2018.
Based on these trends, it is unsurprising that government at the most local level, towns and villages, are also utilizing their police powers to join in the fight against e-cigarettes and vaping. On Long Island alone, numerous towns and villages have enacted local controls on the use of vaping products and the locations where they may be sold. Some municipalities have acted in a limited sphere by prohibiting the use of e-cigarettes and vaping products on or in the vicinity of public property (i.e. parks and government buildings) and in proximity to schools and places of worship. See Town of Hempstead Code § 78-3.2 (2018); Village of East Hampton Code § 211-17 (2018). Others have turned to their zoning power to remove establishments selling e-cigarettes and vaping products from their downtowns and commercial centers. See Town of Babylon Code §§ 213-129.1, 213-166, 213-166.1, 213-490 (2018); Town of Islip Code § 68-341.1 (classifying “vape lounges” and “vape shops” as adult uses and permitted only in the Industrial 1 District) (2016); Town of Smithtown Code § 322-30.5 (2018) (prohibiting vape stores and lounges within 1,500 feet of parks, playgrounds, schools and religious uses); Village of Floral Park Code § 99-18 (2018) (classifying vape shops as adult uses permitted only in the B-3 Business District). One village has enacted an outright ban on the sale of vaping products in its business districts. See Village of Lindenhurst Code § 193-92 (2017).
Proponents and purveyors of e-cigarettes and vaping products are decrying the mounting regulations governing the industry and some are now attempting to push back. See Rowland, Matt “Using ‘family-friendly’ excuse, Lindenhurst, NY wants to ban vape shops” Vapes.com, October 4, 2017. A quiet town in suburban Westchester County could be the test case on whether a local zoning ordinance in our State aimed at e-cigarettes and vaping products is a valid exercise of local government’s land use power.
In May, 2018, the Town of Bedford, New York, adopted Local Law No. 5 of 2018, which enacted 125-29.8 of the Town Code, regulating “electronic nicotine delivery systems”. Citing public health and safety concerns, the law confines “vape shops” to the Town’s Roadside Business (RB) Zoning District, which is situated in one area of the Town. The law goes one step further to prohibit the sale of electronic nicotine delivery systems (i.e. e-cigarettes and vape pens) at any business outside the RB Zoning District, regardless of the principle use of the property. See Town of Bedford Code § 125-29.8(C)(3) (2018).
It has since been reported that a group of gas station owners and operators in the Town of Bedford (located outside the RB Zoning District) have filed suit against the Town, challenging the legality of the 2018 zoning amendment. See McKinney, Michael P. “Several gas businesses sue Bedford over law restricting e-cigarette sales” Rockland/Westchester Journal News, December 19, 2018. If lawsuit goes forward, it will be one of the first (if not the first) challenging a local zoning enactment targeting e-cigarettes and vaping. The outcome of the action will, therefore, be of tremendous interest to supporters and opponents of vaping alike.
At the end of the day, e-cigarettes and vaping products are already in the market place and have proven themselves to be profitable. Therefore, in the opinion of this writer, it is unlikely that they will be banned in New York completely. After all, traditional cigarettes and tobacco products continue to be sold in convenience stores and other businesses throughout the State despite the now widely known and accepted health problems they cause. And like “Big Tobacco”, the purveyors of this generation’s e-cigarettes and vaping products may simply need to come to terms with strict regulatory requirements and negative social opinion as the price of doing business in New York (and elsewhere). We will all just have to wait and see.