Virginia (mis)interpretation of statute regarding e-cigarettes

[Oliver]

Copied below is correspondence I have had with Gary Hagy of Virginia Department of Health, Division of Food and Environmental Services (in reverse chronological order).

I am aware that there are several ECF threads concerning the issue, but I've posted this for general interest.

I would urge all members (especially Virginia residents) to contact Mr Hagy and Mr Gordon and express their dissatisfaction with the arbitrary way in which Virginia statute is being interpretted.

Gary.Hagy@vdh.virginia.gov
christopher.gordon@vdh.virginia.gov
Robert.Hicks@vdh.virginia.gov

SJ

Thank you for the information. Our interpretation remains unchanged.

Gary L. Hagy
Director, Division of Food and Environmental Services
Phone: 804-864-7455
Blackberry: 804-840-5415

From: SmokeyJoe
Sent: Monday, January 04, 2010 9:16 AM
To: Hagy, Gary (VDH)
Cc: Gordon, Christopher (VDH)
Subject: Re: Requested ammendment to FAQ page on Breatheasy website.

​

Hello Gary,

Thank you for taking the trouble to reply.

May I request that if you are going to use Websters dictionary for your legal definitions, would you be consistent in applying them?:

Main Entry: cig·a·rette
Variant(s): also cig·a·ret \ˌsi-gə-ˈret, ˈsi-gə-ˌ\
Function: noun
Etymology: French cigarette, diminutive of cigare cigar, from Spanish cigarro
Date: 1835
: a slender roll of cut tobacco enclosed in paper and meant to be smoked; also : a similar roll of another substance (as marijuana)

Many users of Electronic Cigarettes have chosen to refer to them by the term "personal vaporizer" or similar. The term electronic cigarette is, in fact, a totally arbitrary description, based on little more than the passing resemblence to cigarettes. It makes no more sense to describe ECs as cigarettes than it would to describe Nicotrol Inhalers as such. Indeed, under your definition of "cigarettes", and "smoke", you must also prohibit the use of the above in restaurants.

Further, the term "cigarette" has been defined several times previously in Virginia state law. For example:

LIS > Code of Virginia > 3.2-4200
LIS > Code of Virginia > 58.1-1000
LIS > Code of Virginia > 58.1-1031
LIS > Code of Virginia > 59.1-293.1

It is quite clear under the above definitions that Electronic Cigarettes are not defined as cigarettes in Virginia state law.

The legislation Virginia has adopted is surely designed to protect restaurant customers from the dangers of second-hand smoke in the atmosphere? ECs have never been shown to contribute to any environmental polution, and if you look at the ingredients you'd be hard pushed to argue that they ever could be. Electronic Cigarette users should not be penalised on the basis of arbitrary decisions.

Please, I urge you to reconsider.







On 04/01/2010 13:19, Hagy, Gary (VDH) wrote:

The Virginia Indoor Clean Air Act defines smoke or smoking as:

“…the carrying or holding of any lighted pipe, cigar, or CIGARETTE OF ANY KIND, or any other lighted smoking equipment, or the lighting, inhaling, or EXHALING OF SMOKE FROM a pipe, cigar, or CIGARETTE OF ANY KIND.”

This is very broad definition, particularly the language regarding cigarettes.

When the user puffs on an e-cigarette, he or she inhales a vapor that contains nicotine and then exhales a portion of the vapor. Webster’s dictionary defines smoke as “1 a : the gaseous products of burning materials especially of organic origin made visible by the presence of small particles of carbon b : a suspension of particles in a gas 2 a : a mass or column of smoke b : smudge 3 : fume or vapor often resulting from the action of heat on moisture.”

Based on the broad definition that includes the terminology “cigarette of any kind” and seeing no language that exempted electronic cigarettes, it is the Department’s interpretation that electronic cigarettes are included within the statutory definition of “cigarette.”
​

​

Gary L. Hagy
Director, Division of Food and Environmental Services
Phone: 804-864-7455
Blackberry: 804-840-5415


​

Gary L. Hagy
Director, Division of Food and Environmental Services
Phone: 804-864-7455
Blackberry: 804-840-5415

From: SmokeyJoe
Sent: Sunday, January 03, 2010 10:17 AM
To: Hagy, Gary (VDH)
Subject: Requested ammendment to FAQ page on Breatheasy website.

​

Dear Gary,

I write with reference to the following webpage: http://www.vdh.state.va.us/breatheeasy/faqs, and in particular the section as follows:

Are electronic cigarettes banned under the new law?

Electronic cigarettes are considered cigarettes and are banned in the same locations affected by the new law.
​

While I commend Virginia on its prohibition of indoor smoking in restaurants, I must express great concern that the above statement seems to me to be in violation of the statute as written, as well as being a gross misrepresentation of electronic cigarettes.

Electronic cigarettes (ECs), despite their name, produce no smoke and no combustion is involved in the process of delivering to the user a vapor (a mixture of water, propylene glycol, flavoring and nicotine). I support fully any proprietor of any establishment refusing to allow their customers the use of ECs, but I do object to your confusing the issue by giving an arbitrary definition of ECs that is not supported by the statute.

Please would you either present me with the relevant section of statute you believe prohibits electronic cigarettes from restaurants in Virginia, or remove this paragraph from the linked webpage, and any other material, printed or electronic, where it occurs.

Additionally, if you would like any more information on ECs, please don't hesitate to contact me.​

 

[Storyspinr]

SmokeyJoe, when did you get the last correspondence containing the statement "Our interpretation remains unchanged"? I was planning on calling Hagy again this week since I had sent him links to information on e cigs in mid-December. If you received this response today, it indicates the facts had no impact on him (which doesn't surprise me).

Once I know they intend to adhere to their ridiculous claims, there are further actions we can take in an attempt to get this resolved; however, I wanted to give them a "fair chance" to change their minds. As I have stated elsewhere, the ban on e cigs no doubt has more going on than meets the eye as it has the hallmarks of anti-smoker extremists.

As an aside, the e cig was not specificially exempted from the ban because the law was passed nearly a year ago, before most - if not all - state legislators had ever heard of e cigs. Regardless, the device in no way meets the definition of a cigarette or "smoking", despite their rather childish attempts to include it.

 

[Oliver]

Hey Storyspinr - Hagy's latest reply was sent to me this morning, not 1 hour after my last email to him.

That said, I wouldn't let that put you off. The more emails they receive the better, imho. The idea that they can define "smoke" as fumes from heated moisture from one dictionary interpretation is pretty bizarre - I'll defer to legal experts as to whether this is a valid way of interpreting statute.

SJ

 

[Zofryer]

This guy is "staying the course". A personal visit from a deity expounding on the virtues of inhaling nicotized pg vapor wouldn't sway him. Our best bet is his replacement.

 

[Storyspinr]

SmokeyJoe, I intend to call him this week - just will probably wait another day or two since he was off last week; I'll give him time to settle back into the "groove". In the meantime, I hope he is deluged with further emails although, as Zofryer correctly notes, it seems he and the department are going to "stay the course". Logic and facts are irrelevant to them.

I'm afraid it will take "other methods" in this fight. I have several ideas/plans, but am reluctant to post them on an open forum since I have no doubt those supporting the e cig ban scan these postings. No point in revealing our counterattack in advance.

 

[IFiddle]

Smokey (and anyone else interested in sending emails to these folks),

I don't want to nitpick, but I personally won't choose to send an email using a forum nickname or anything like that. Using one's real name and a "respectable" (i.e. work, school, etc) email address would probably make them more likely to take the sender seriously as they know they're dealing with an actual person who is concerned enough about the issues to not hide behind a psuedonym.

 

[kcr]

Well, using the definition he is binding himself to, he needs to go in and shut down most every restaurant kitchen in his state, as well as some older heating units...

 

[JerryRM]

SmokeyJoe, at least you tried and you got an answer. I had an issue with RI politicians some years ago, regarding electric assist bicycles being categorized as motor vehicles. I sent letters to my representative, the attorney general and the governor. The only reply I received was from the governor (through the department of motor vehicles) quoting the current law to me. We have logic and they have agendas.

 

[Oliver]

Oops - yes, I should have said, my real name and contact details were given in the original emails. You're quite right that this is essential in order to be taken seriously.

Smokey (and anyone else interested in sending emails to these folks),

I don't want to nitpick, but I personally won't choose to send an email using a forum nickname or anything like that. Using one's real name and a "respectable" (i.e. work, school, etc) email address would probably make them more likely to take the sender seriously as they know they're dealing with an actual person who is concerned enough about the issues to not hide behind a psuedonym.

 

[Storyspinr]

I just spoke to Mr. Hagy this morning and here is their latest opinion. He said the Department is not in a position to judge the safety of the product, but that the code as it pertains to the smoking ban is "poorly written". It just says "any kind of cigarette" without specifically defining a cigarette as containing tobacco. When I pointed out Virginia Codes DO define a cigarette as containing tobacco, he said the problem is each code says (paraphrasing) "As pertains to this Section, a cigarette is defined as..." In other words, each definition applies only to that particular section.

Their recommendation is that the ban code needs to be rewritten to specify the ban pertains to tobacco cigarettes, or a new law or addendum to the ban needs to be written specifically exempting the e cig.

They ignore, of course, the fact the ban code does specifically refer to SMOKE from a cigarette, and that e cigs do not produce smoke (I pointed that out to him, for what it's worth).

Whether we agree or not, it appears the best course of action is for Virginia residents to contact their state Delegates and Senators about either rewording the ban or drafting new legislation exempting the e cig. Hagy did say he has received inquiries from three state legislators in response to questions from their constituents...but we need more. I think there is only a remote chance any new law or revision will happen, however, since I doubt most legislators will want to address the ban again considering how contentious the fight was last year.

There are two other options: a court case, or the incoming AG will rule the e cigs do or do not violate the ban (although the AG, as I understand it, can only rule when requested by a state agency, not by a private citizen).

 

[Drozd]

Hey Smokey..did you point out that he quotes the law but the way it's written it says LIGHTED cigar,pipe, or cigarette of any kind and these are not lighted..the wording really is poor..in essence the way it's written it could read lighted cigar, lighted pipe, or lighted cigarette of any kind...
it really is a semantics game..

Copied below is correspondence I have had with Gary Hagy of Virginia Department of Health, Division of Food and Environmental Services (in reverse chronological order).

I am aware that there are several ECF threads concerning the issue, but I've posted this for general interest.

I would urge all members (especially Virginia residents) to contact Mr Hagy and Mr Gordon and express their dissatisfaction with the arbitrary way in which Virginia statute is being interpretted.

Gary.Hagy@vdh.virginia.gov
christopher.gordon@vdh.virginia.gov
Robert.Hicks@vdh.virginia.gov

SJ​

​

 

[bogiediver]

I also received the same (exactly the same) reply from Mr. Hagy.

Since there is a slightly different audience here, thought I'd repeat a portion of my reply to Mr. Hagy regarding using the definition of 'smoke' in the way they are attempting.

*****
... "fume or vapor often resulting from the action of heat on moisture" would then have to include a person's exhaled breath in a cold environment - vapor resulting from the action of one's body heat on the moisture in their lungs. Therefore, any environment that has people working in a refrigerator or freezer; or an unheated environment in winter; or anywhere else cold enough to create vapor from the people's breath, would have to be closed since people would not be able to 'smoke' in those environments.
*****

I have received no further reply from Mr. Hagy; but if I do I would expect it to be similar to the last SJ got - damn the facts, this is the decision...

Respectfully,

-bogie

 

[TropicalBob]

My fear for this: You don't need fire to make smoke. Just pour some oil on a hot burner and watch. There might not be flames, but there will be plenty of smoke from interaction with the heated coil. Our liquid interacts with a heated coil, too. What do we get?

I've watched "vapor" for two years of e-smoking and believe there is a possibility it contains particles found in smoke. If a test of our exhalations turns up even one particle consistent with smoke, then our harmless vapor argument is lost. We are "smoking" a liquid rather than a solid, if that's the case. These truly are "e-cigarettes."

You can bet tests currently underway will determine if that's the case. We can only hope our vapor is "pure" in a way that smoke is not.

And we can fully understand why Ruyan patented ULTRASONIC atomizers and not cheap heating coils for its atomizers. We need vapor, absent heated byproducts.

 

[KitKit]

TB I'm not sure if I like you or not! (joking) you are the voice of reason....sometimes. Armed with the limited knowledge I have you my dear have a very good point!

 

[Moonflame]

If his definition of smoke is heat acting on moisture to provide vapor shouldn't we worry about getting in trouble if we order a steaming plate of fajhitas, or even breathe outside in the winter. Both of those are examples of heat acting on moisture to make something that looks like smoke , but isn't, just like vapor form our PV isn't smoke. And we'd really better avoid those lovely steaming cups of coffee. Maybe we should be calling them personal fog machines that require our sucking action to work. As far as I know fog machines are still legal indoors in VA.

 

[FlipnOut]

Sounds like you folks in Virginia might get to be the frontier of the battle. Who's going to be the one to take one for the team and vape in a bar just to battle the ticket? We did this in Michigan (few years back when I lived there) when the state couldn't provide what was necessary to enforce the helmet law. In the end, they just fixed the loophole, but we did get to ride lid free for about 6 months.

 

[Vocalek]

Time is running out: I am contacting my VA legislator today with a tally of the $ saved by the number of packs not smoked by VA Vapers. If you live in Virginia, please respond

http://www.e-cigarette-forum.com/fo...urgent-residents-virginia-please-respond.html

 

[ChipCurtis]

My fear for this: You don't need fire to make smoke. Just pour some oil on a hot burner and watch. There might not be flames, but there will be plenty of smoke from interaction with the heated coil. Our liquid interacts with a heated coil, too. What do we get?

I've watched "vapor" for two years of e-smoking and believe there is a possibility it contains particles found in smoke. If a test of our exhalations turns up even one particle consistent with smoke, then our harmless vapor argument is lost. We are "smoking" a liquid rather than a solid, if that's the case. These truly are "e-cigarettes."

You can bet tests currently underway will determine if that's the case. We can only hope our vapor is "pure" in a way that smoke is not.

Are you sure you're not reaching so far into theory that you're inadvertently giving the other side argumentative ammunition they don't need to have?

I'd say if the oil-on-the-burner experiment turns up something you can SMELL, that smells like something BURNING, you've probably got smoke there, or in some substantial quantity. You can't really smell anything from e-cigs except a hint of the flavor if blown directly at you.

If you give the other side "semantic permission" to classify our vapor as "smoke" you're foolishly arming them with ideas. I know we all like to fancy all kinds of thoughts on these boards, but be careful what you say.... it could come back to haunt in the form of a ban based on those "fanciful arguments".

 

[TropicalBob]

If you were a corporation, or an inventor, or a writer, you would run scenarios of possibilities based on facts known today and extrapolations for tomorrow. It's just the intelligent thing to do. What if ....?

If we become aware of possibilities, then we might take action to avoid them becoming probabilities or realities. The makers of e-cigs FAILED miserably over the past two years to meet the possibilities of regulation. Now, it's coming. So much for sticking one's head in the sand while shoveling in dollar bills.

Makers of e-cigs need to thoroughly test the vapor and publish the results. All vapor, not a select few. It needs quality assurances as well as nicotine level assurances. And if it does contain particles found in smoke then the mechanism for vapor creation will have to be altered if we intend to claim "vapor" is what we're producing.

This is not so simple as steam rising from hot coffee. That's not relevant to what we do. And we don't exhale "water vapor," that's for sure.

 

[kristin]

This is exactly the type of thing that the vapor study being done by Vapers International is trying to combat. If we had a study done, by a respected and approved lab, showing EXACTLY what is in the vapor; we'd know what kind of grounds we have to stand on. Even if we don't have FDA-approved testing for the approval of their SALE, maybe we'd have something justifying & supporting their USE.