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New York State Budget Pushes Forth Anti-Vaping Agenda

New York State Budget Agenda Pushes Forth Anti-Vaping Agenda

A broad budget proposal circulating at the New York statehouse has vapers across the state up in arms, and to a certain extent it's for good reason. We received an email making a handful of alarming claims about the potential new laws, known as bill 2009 in the Senate and 3009 in the Assembly. We decided to have a look.

First off, here's the full text of the bill in its most current form, knock yourself out if you want to give it a go. The vape-related meat of the matter is in Part FF, which starts on page 89.

First, let's look at some of the claims we could verify. The letter many New York vapers received says that vaping would be banned anywhere that smoking currently is. This claim seems to be mostly true – the bill does mention adding vapor products to the definition of tobacco products. While vaping bans are only explicitly mentioned for schools and other government facilities, once vaping is defined as "smoking" via statue it logically follows that use of a vaporizer would be verboten anywhere one currently isn't allowed to "smoke."

It's certainly disappointing to see vaping demonized (opponents would prefer the term "denormalized") in the same way as smoking because it misleads the public into believing the two activities are equally harmful and undesirable, and thus discourages smokers who might otherwise be inspired to quit. This alone makes for a good reason to call your elected officials and voice displeasure with the bill. Still, it should be noted that this is just another front in a war that's being waged in cities, counties and states across the country, going all the way up to the FDA and their "tobacco product" deeming regulations.

Another claim is that vapers in possession of more than 100 ml of e-liquid could face fines. We couldn't find direct evidence to support this, though it would be a bombshell if we did, because it's not uncommon to find vendors that offer single bottles of 120 ml or more. Someone stocking up on a handful of flavors to last a month or so could easily find themselves in possession of many times this alleged legal limit.

How did this get confused? Well, there are several references to this 100 ml number – but all of them seem to reference liquid intended for sale and the payment of taxes (which we'll get to in a minute). In other words, it's illegal to possess liquid intended for sale on which the appropriate taxes haven't been paid. The same is true of possessing cigarettes or alcohol on which state taxes haven't been paid – and since New York has some of the highest sin taxes in the nation, we can see how people would be tempted to dodge the taxman.

The same letter claims that a tax of 40 cents per milliliter of liquid is set to go into effect. 40 cents! That would nearly double the price of a bottle of juice, or more than double it in the case of discount brands!

Again, though, there's a problem. 2009/3009 imposes a consumer tax of 10 cents per ml. While it's debatable whether that's an appropriate number, it's certainly not 40 cents. So where would that number come from, anyway?

Double taxation, of course. The 10 cent tax would be paid by the consumer, but the bill also references a second tax to be paid by the vendor of 75% of the wholesale value on each bottle of liquid. It's probably safe to assume that vendors are going to pass that cost onto vapers in the form of higher retail prices. With that in mind, the end consumer is probably going to pay much more than an extra 10 cents per ml for their juice if the law goes into effect – whether that amounts to a full 40 cents or not is up for debate.

Finally, we'll address a claim that the vaping age is set to go from 18 up to 21. Once more, we didn't find any specific reference to back this claim, though we did find several references in Part FF to making products available to 18-year-olds (see page 91 lines 5-6, lines 9-10, line 18, and lines 25-34, for starters).

There are other rumblings that the state may be looking to move the smoking age to 21 (New York City and other states such as California have already done this), but we can't find any reference to that movement in Part FF. We don't have a specific stance here other than to restate our commitment to keeping vapes out of the hands of those the law deems too young to have them, but if this issue means something to you it could be a reason to lobby your legislators against age restrictions separately.

So, what does this law do? Beyond raising taxes, there are several more restrictions that the vape industry would have to endure:

  • Free samples would be banned, killing tasting bars at brick-and-mortar shops or, more likely, causing the implementation of a nominal sampling fee to get around the law.
  • E-liquid packaging would have to be child-resistant.
  • Vape products in shops would have to be locked up or kept behind the counter – customers wouldn't be able to serve themselves without the assistance of a juicetender (there's actually a carve-out here for shops that deny entry to patrons under 18).
  • School bus drivers may not exceed speeds of 55 miles per hour or vape while transporting students (really, check S 3624).

There's more that we won't dive into here. Regardless, there are plenty of reasons to lobby against the passage of Part FF and to oppose 2009/3009 – particularly the part that officially defines vaping as "smoking." We'd just like to see opposition more firmly rooted in fact rather than what appears at this point to be scaremongering…