Wrote the Arkansas AG about e-cigarettes....

Discussion in 'Legal Issues with Ecigarette Use' started by Moriah, Jan 29, 2010.

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  1. Moriah

    Moriah Senior Member ECF Veteran

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    Bentonville, AR
    I'll update this thread with any response I get, but what do you think of the letter?

    The main reason I wrote it was I have a friend with asthma who is VERY interested in trying the ecig if they work for me -- but she has a three year old daughter. She is terrified that if she were to use it in her vehicle with her child in the car that she could get a huge fine by a cop under the Arkansas law which prohibits smoking in a vehicle with a child under a certain age.

    ------

    Greetings!

    I have been a tobacco smoker for the last eight years. I have tried several methods to quit and have not yet been able to stay away from smoking tobacco, until now. I purchased a device that I have seen called an "electronic nicotine inhaler", "personal nicotine vaporizer", or "electronic cigarette". And I have not smoked a tobacco cigarette since first using it.

    These devices are composed of a battery, an atomizer with a heating element, and a cartridge filled with a liquid containing flavoring, vegetable glycerin and/or propylene glycol (both used as food additives), and varying levels of nicotine. When in use, the atomizer draws an amount of the liquid close to the heating element, and the liquid vaporizes.

    The person inhales this nicotine-containing vapor to replace the nicotine they would otherwise obtain from smoking a tobacco cigarette. Since the liquid never reaches combustion temperature, the person and those around them are not exposed to toxic products of combustion. The user exhales a vapor, which dissipates in the air in 5-10 seconds. The reason for the device generating a visible vapor is completely cosmetic -- so the user feels more like they are smoking a cigarette and exhaling smoke, and the amount of the visible vapor can be increased by adding more vegetable glycerin to the mixture. This vapor is similar to the "fake smoke" used in film production.

    Obviously it would be better for no one to use nicotine at all. But I know I feel better using this device -- my lung function has improved, I no longer smell like smoke, and the people around me are no longer exposed to dangerous carcinogens.

    My question, however, is whether the use of these devices in establishments that currently bar smoking under the new state laws would be legal. Currently I have only used them in establishments where smoking tobacco was allowed, but I have had many questions asked of me about their legality in non-smoking establishments. Also, I have friends who have small children who are interested in purchasing such a device, but wonder if it would be legal for them to use them with their children in their vehicle.

    Has your office made any ruling at this time as to the legality of use of electronic cigarettes under the Arkansas Clean Indoor Air Act or other applicable laws?

    Thank you,

    Moriah
     
  2. killingfrost1979

    killingfrost1979 Full Member

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    Jan 25, 2010
    Location:
    Fayetteville, AR
    Definitely keep us posted! I know there doesn't seem to be very many of us Arkansans here, but the ones that are, definitely would like to know the state's standpoint on this!
     
  3. Cali

    Cali Senior Member ECF Veteran

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    Just an FYI there is now an Arkansas group for vapers living in the natural state ;) Please let me know what the AG has to say about this
     
  4. Vocalek

    Vocalek CASAA Activist ECF Veteran

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    *Sigh* This was a very dangerous thing to do. To whom did you direct this question? Probably the only safe person to have asked would have been one of the legislators who voted on the law. If you asked the State Heatlh Department, you might be screwed.

    In Virginia, we had someone write to the VDH before our law went into effect. She meant well. She just wanted reassurance that it would be OK for her to continue to use her device indoors.

    Unfortunately, the VDH does not have "public health" as their number one priority. Most State Health Departments have at least one person on staff who is under the thrall of the tobacco control policy makers who see e-cigarettes as the latest threat to their "let's stamp out all forms of nicotine use" program.

    In actual fact, the Virginia law as written does NOT include e-cigarettes. However, once the question of e-cigarettes was brought to their attention, VDH decided to start playing semantic games. The result is that their FAQ page states that the law does include e-cigarettes. We are in the process of trying to get this misinterpretation and abuse of power corrected and it is an arduous process.

    I do hope that this does not turn out as badly for you as it has for Virginians.

    People from other states: If you have a question about your state smoking ban law, post it here and one of our attorneys will help you interpret it.

    Remember: It is easier to get forgiveness than permission. Permission is often denied, even when there is no good reason to do so, simply because the person with the power to grant that permission wants to retain as much power as possible.
     
  5. martha1014

    martha1014 Ultra Member ECF Veteran

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    Delhi, LA USA
    Be careful you may have opened a can of worms. I say when in doubt about vaping don't do it. You can vape in the car just do it as inconspicious as possible. My husband is allergic to cigarette smoke but now I vape all the time even in the car without the windows rolled down and it does not bother him so I don't think it would hurt the kids.
     
  6. yvilla

    yvilla Ultra Member Verified Member ECF Veteran

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    Rochester, NY
    To add to Vocalek's post. I sighed when I saw this post too, but didn't want to offend anyone, so refrained from posting until now.

    I believe you acted with the best of intentions, but for anyone wanting to know what your state's smoking ban covers, why not just look it up? All states have their codes online. For example, for Arkansas, you can find he clean air act here: http://www.arcleanair.com/pdf/act8.pdf

    And here are the relevant portions of it, clearly not covering ecigs:

    (13) “Secondhand smoke” means smoke:
    (A) Emitted from lighted, smoldering, or burning tobacco
    when the person smoking is not inhaling;
    (B) Emitted at the mouthpiece during puff drawing; and
    (C) Exhaled by the person smoking;

    (16) “Smoking” means inhaling, exhaling, burning, or carrying
    any:
    (A) Lighted tobacco product, including cigarettes, cigars,
    and pipe tobacco; and
    (B) Other lighted combustible plant material;

    So, educate yourselves on the exact wording of your state's legislation on smoking in public, but do not give officials any excuse to start twisting the actual meaning of any existing bans like they are trying to do in Virginia. As Vocalek said, all current smoking bans cover only combustible tobacco products, with the sole exceptions of New Jersey, which had to amend its legislation to specifically include ecigs, and Suffolk County, NY, which had to do the same.
     
  7. yvilla

    yvilla Ultra Member Verified Member ECF Veteran

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    But this I disagree with, Martha. Vaping is not smoking. And we should never concede, or act like we're conceding, that it is.

    For me that means using my ecig in many, many places where smoking is prohibited. But of course, using common sense and courtesy, and discretion when called for.

    There is a world of difference between a statutory ban, which allows for no discretion even on the part of the owner of an establishment, and the right of such an owner to decide for him or herself what to allow. I never ask for permission either, but in over a year of vaping I have never had an issue!
     
  8. killingfrost1979

    killingfrost1979 Full Member

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    Fayetteville, AR
    The exact definitions included there are pretty clear cut. I read a little bit about the trouble Virginia's having... I'm wondering though, how similarly worded the definitions and laws in Virginia are. If you REALLY wanted to try and stretch things for Arkansas, the only section I see that could possibly be twisted in any way, would have to be section 16B, as "other lighted combustible plant material" could possibly be twisted to include VG, even though you're not actually lighting it. And most politicians worth their weight could easily twist the word "lighted" and say that means, and includes heating the material.
     
  9. Moriah

    Moriah Senior Member ECF Veteran

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    The reason I wrote the Attorney General's office rather than the Arkansas Department of Health was the experience in Virginia. You are all too correct about health departments not being all that concerned about public health when it comes to finding a middle ground between "quit or die". The AG is much more likely to look at the statute as it is written -- which, as some have pointed out here, is very similar to the Virginia statute. They aren't nearly as likely to say it's against the law based on a perceived fear that acknowledging a cigarette substitute is relatively safe would encourage new people to pick up the habit.

    I'm nowhere near as concerned about vaping in public here in the Natural State as I am about the law regarding kids in the car. While it's supposed to be a secondary offense, right after the law went into effect the same friend I'm speaking of was pulled over because she was smoking with the carseat in the back of her car -- no kid was in it, but they could see she was smoking and see the carseat. She's understandably paranoid on this issue.

    Edit to add: Arkansas law uses the term "tobacco product" rather than "cigarette of any kind", but even though e-cigarettes contain no tobacco, Judge Leon's decision was that e-cigarettes fell under the "tobacco product" definition as the nicotine in them is extracted from tobacco. And while hopefully the Attorney General won't be as much of an idiot as the VDH, I can so picture someone saying that the LED at the end of the ecig makes it qualify as "lighted". Or, as KF above put it, they could say the heating element qualifies as "lighted".
     
  10. thefisherman

    thefisherman Full Member

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    Florida
    As we age and gain experience, we all begin to discover that while government is sometimes well-meaning but incompetent, the vast majority of the time it is a voracious, self-perpetuating blob of incompetent evil. I admire your effort, Moriah, but even if you achieved your objective of getting some sort of 'thumbs up' from some government lackey in a letter, it would unfortunately be meaningless. The only way to bind any of the various government types, or at least obstruct the unchecked use of their power, is to file a declaratory judgment action in court. Of course, years would pass and there would be an appeal, whatever the initial result. Then, another judge could rule differently in a parallel jurisdiction, or the federal government could statutorily pre-empt. Bottom line: because you are not living in a free country, you must hope the government takes mercy on you. Or, of course, there is the very convincing argument, in a republican democracy [sorta], of an angry mobs of voters.
     
  11. Vocalek

    Vocalek CASAA Activist ECF Veteran

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    Springfield, VA
    The AG was definitely a better person to contact than the Health Department. Let's just hope that the AG (or the assistant who opens the mail) doesn't get lazy and bounce it to the Health Department for their interpretation. Unfortunately that's what happened to me when I sent the Virginia AG an appeal. His assistant figured, "Let's save the boss some work and bounce this to the VDH."

    Luckily one of the VA delegates has agreed to speak with the AG directly about the issue.

    P.S. Gotta agree with thefisherman. I, too, am getting very cynical about government and politicians.
     
  12. killingfrost1979

    killingfrost1979 Full Member

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    Jan 25, 2010
    Location:
    Fayetteville, AR
    All it took for me to start feeling that way, was to serve this country in the military, sadly enough.
     
  13. Roger-J

    Roger-J Full Member

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    Dec 19, 2010
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    Sweden
    In the US military there was a period called "Don't ask, don't tell" about homosexuals, it started in 1993 and is now in the process of ending.

    For vapers we are in a similar situation. Most authorities know that e-cigs are much better than tobacco, but no authority wants to take a stand for e-cigs.

    If we try to force an authority to take a stand it has to take a stand against vaping. An example from Denmark. One day somebody started the first web-based shop selling e-cigs and e-liquid in Denmark. The next day all sale of e-cigs and e-liquid was made illegal in Denmark. That person forced the authorities to take a stand, and was ruined because he had invested a lot in that firm.

    It took 17 years for homosexuals to get to the point when they can come out of the closet in the US military.

    I think vapers are in a similar situation. "Don't ask, don't tell", will probably work for us for a number of years, while e-cigs are becoming increasingly known and accepted, and finally fully legalized. All provocations in workplaces and against authorities, will only force authorities and employers to take a stand against vaping.
     
  14. Roger-J

    Roger-J Full Member

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    Location:
    Sweden
    What I mean is that we should let those who are qualified in how to work the system do that. Like the doctors on the tv-show "The Doctors" who have demonstrated and recommended e-cigs at least 5 times. That's how I got to know about electronic cigarettes more than two years ago, and I stopped using tobacco a week later after sending for an e-cig and testing it for two days.

    The doctors can recommend e-cigs and back the recommendation up with their education and knowledge, but they cannot demand that FDA change their position.

    Katherine Heigl and David Letterman can demonstrate e-cigs but end the discussion jokingly. They know how far they can go, they are professionals.

    People who have good documentation or can tell about their own experiences can write to members of congress and other authorities, but don't demand an answer or ask them to take a stand on the issue.

    In general, leave the communication with the authorities to people who know what they are doing and exactly how far they can go without provoking the authorities into issuing bans. Knowledge and acceptance of electronic cigarettes must slowly sink in. It will take the time it takes.
     
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