Thursday, February 25, 2016

Smokeless Tobacco in the Smoke-Free Air Act -- Illogical and Unlawful


On February 25th the NYC Council Health Committee held a hearing in regard to five separate bills on the regulation and ban of shisha (hookah) and smokeless tobacco.

I had received a personal invitation from Legislative Counsel to attend and speak.  Ultimately I was unable to make it but submitted written testimony for inclusion in the hearing record.

That testimony -- along with the description of each of the five proposals -- is as follows:



                February 25, 2016

Testimony of Audrey Silk, Founder

For public hearing held by New York City Council Health Committee

On the multiple following Introductions:  

Int 0617 - This bill would prohibit the sale of shisha in New York City, except for shisha sold at hookah bars, tobacco bars, and tobacco stores.
Just because shisha’s customer base is smaller than that of conventional cigarettes, it doesn’t mean it should be a cover – that few will notice what you’re planning and know to object -- for getting away with banning the sale of shisha in regular retail stores where conventional cigarettes rightly remain free to be sold.

Int 1076 - This bill would raise the legal age to buy non-tobacco shisha, pipes or rolling papers from 18 to 21. It would also define non-tobacco shisha as any product that does not contain tobacco and is smoked or intended to be smoked in a hookah or water pipe.

“Young adults.”  In other words, adults.  This has long been debated and you’ve sadly sailed that ship already.  And all I can do anymore is just shake my head at this infantilizing the population simply because a body of adults has power that other adults don’t.  Yet you’ll all gladly campaign to, and accept the votes of, those aged 18 to 20 when running for office as if they are miraculously mature enough to pick people to lead a whole city that they have a had a short time to learn about but then deemed too immature to make a decision this generation has been educated on endlessly.  To put that hypocrisy into a sentence:  “Thanks for your vote and even maybe campaigning for me, but don’t let the door hit you on your rear end on the way out.”

Int 1075 - The proposed legislation would require that any restaurant which permits the use of non-tobacco shisha to restrict its use to a section of the restaurant that is no greater than 5 percent of the restaurant’s seating capacity. The bill would also require such locations to post signs warning customers of the adverse health effects of using non-tobacco shisha products in devices lit with charcoal.

I take it that this is a competing bill with Intro 139-A?  It sounds like it.  139-A seeks to add it to the Smoke-Free Air Act (SFAA) which would effectively ban it from all restaurants – the few that currently offer it -- except for a handful of locations just like cigar bars in the SFAA.  Whereas this Intro, 1075, will keep it in any restaurant on the condition it’s restricted to 5% of the seating. How many places are large enough that you are not condemning them to ONE table.  Or is that the ulterior motive?

Proposed Int. No. 139-A - This bill would add non-tobacco shisha to the City’s Smoke-Free Air Act. It would allow existing non-tobacco bars, commonly known as hookah bars, that derive the majority of their income from non-tobacco shisha and paraphernalia to continue operating as long as they register and meet certain standards.

Intro 1075 doesn’t belong in the SFAA to begin with and here neither does Intro 139-A.
The SFAA is not a receptacle for anything you want to throw into it because it has to do with products within a certain family. 

Amendments to current law, though itself legal, does not fix the unlawful misplacement of the subject matter. The SFAA was written strictly to eliminate exposure to smoke from tobacco products based on the alleged science surrounding Environmental Tobacco smoke or ETS. 

Accordingly, as also part of this Intro, I also vigorously object to the amendment of Section 1. Subdivision y of section 17-502 of the administrative code of the city of New York:  

[A]mended to read as follows:
y. “Smoking” means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, water pipe or any similar form of lighted object or device [which contains tobacco].

Again, it does no good to remove the words “which contain tobacco” to accommodate the inclusion of “water pipe” when the SFAA – after many months of heated debate over the science of alleged harm due to exposure to tobacco smoke –  was enacted to address what was debated!  No such exploration and discussion has taken place in relation to non-tobacco products.

Once again, this seems to be a case of cover for your political lives by slipping it into the more pleasing sounding Act, rather than crafting a NEW law where it would lawfully fit as a separate subject.  Instead you dump it unlawfully into the SFAA to avoid scrutiny of a proposal that would have to be described using different words – words that would lift the veil on its incongruity and expose the depths of the council’s paternalism.

Which brings us to the most glaring misrepresentation of all…

Int 1068 - This bill would prohibit the use of smokeless tobacco products, such as chewing tobacco and snus, at sports stadiums and arenas that host events that require a ticket for admission.

I suppose council members are taking their cue from California that recently enacted the same for the following stated reasons:

“…A ban on the use of smokeless tobacco in professional baseball takes aim at the use of [it] by professional baseball players at stadiums… with the goal that impressionable youth never begin to use smokeless tobacco products or associate [it] with the sport of baseball.”  And “To promote a healthy and active lifestyle and to set a better example for youth…”

In other words, crafting law intended to control adult legal behavior in order to mold minds to the state’s way of thinking.  

The SFAA does not ban the “use of” cigarettes to control the smoker; it banned “smoking” to control the smoke.

There are numerous historical statements on the intent of the SFAA [see addendum].  One, from the anti-smoking organization Americans for Nonsmokers’ Rights (ANR) – the architects of many of the country’s smoking bans including NYC’s – can be found in   their guideline for local advocates appearing at hearings.  It instructs: 

"Because smokefree laws are designed to protect nonsmokers, and not to alter the behavior of smokers, extensive testimony on the health effects of primary smoking is irrelevant and should be avoided.”

-- [see:]

In total contradiction the council tries to pass this one off as part of the "Smoke-Free Air Act" instead, knowing the masses will nod their left-in-the-dark conditioned heads.  It's personally politically safer than being honest and presenting the citizens of this city with a new law -- which you have every right to do -- the purpose of which is to impose a prohibition on their own legal lifestyle choices, and hearing back what they think about that; what they think about you banning free legal choice because you said so, regardless that something is legal to purchase and consume otherwise. 

Be open by being lawful about what you’re trying to do and give the people a chance to ask you where such legislation will stop.  Maybe you’ll ban sodas at stadiums next.  Maybe ball players can’t be over a certain weight.  What will the children think, right? 

This is also in the realm of censorship. It’s you who call the sight of it a “message.”  Speech. Would you ban my wearing a t-shirt that said “Smoking is Normal”?  I would hope your answer would be no to curtailing what amounts to speech.   So can you please explain the difference to me?  The rationale for banning smokeless tobacco is that it sends the wrong message.  If it's a message you're banning then how is my legal right to wear a t-shirt that says “Smoking is Normal” in public any different?  Put the other way, under these terms, how is a visual item --smokeless tobacco -- any different from my t-shirt?  

That it’s “only” in one place and only one unpopular subject matter doesn’t rescue it or you from its ugliness.  Incrementalism is a cornerstone in the anti-smoker playbook, equal protection of the minorities’ autonomy be damned.  Where will you forbid this and other legal adult behavior targeted by Big Brother Public Health next? When can I expect to be fined for wearing this t-shirt that creates the same “problem” – according to you -- as seeing a ballplayer chewing tobacco?

Appalling in its own right is the support of this bill by Councilman Gentile as a co-sponsor who was vocal at the e-cig hearing in pointing out, during an exchange with former Health Commissioner Thomas Farley, “I’m just wondering if we’re here today based on . . . your testimony trying to fit a square peg into a round hole. Based on the definition that we have for the Smoke-Free Air Act. And the fact that the Smoke-Free Air Act addressed the issue of secondhand smoke.  And as you said in your testimony who [sic] has been pointed out in . . . the presentation is there is no traditional secondhand smoke with . . . e-cigarettes.  So are you suggesting that we redefine the . . . Smoke-Free Air Act because the . . . basic definition was to protect secondhand smoke [sic]. “

You might or might not be aware that my organization is currently in court over this same behavior by this council in regard to electronic cigarettes.  This social engineering experiment – a ban to keep the people themselves from an otherwise legal product -- was never the intent of the Smoke-Free Air Act.  Seeking to exert control over personal behavior through a ban on a specific type of product is a different subject than protection of the public against secondhand smoke exposure under Chapter 5.

The infamous NY Post headline, “Headless Body in Topless Bar,” stuck because the absurdity was brilliant.  “SMOKELESS tobacco in the SMOKE-FREE Air Act” is competitive.  I’d have a hard time believing you would accept that kind of logic from the public on other topic debates.  Why should we accept it from you?

The City Council needs to kick this new habit whereby its members are unable or unwilling to attempt to enact freestanding bans on the likes of smokeless tobacco without the political cover afforded by tying it to the Smoke Free Air Act. 


To control tobacco smoke in order to eliminate non-smokers’ exposure

Local Law 2 of 1988 (then called the Clean Indoor Air Act)

“The City Council hereby finds that the regulation and control of smoking in
enclosed public spaces is a matter of vital concern, affecting the public health, safety and welfare of all New Yorkers.  There is increasing evidence that passive exposure to cigarette smoke (second-hand smoke) is linked to a variety of negative health consequences in humans . . . . ”

“Given the current state of scientific evidence on the adverse health effects of second-hand smoke, the Council, in enacting this chapter, seeks to accomplish two goals: (1) to protect the public health and welfare by prohibiting smoking in certain public places except in a designated smoking areas and by regulating smoking in the workplace; and (2) to strike a reasonable balance between persons who smoke and nonsmokers to breathe smoke-free air.”

Local Law 5 of 1995 (and renamed the Smoke-Free Air Act)

“According to the United States Environmental Protection Agency (“EPA), the health risks attributable to environmental tobacco smoke (“ETS”)(also known as second-hand smoke, passive smoke or involuntary smoke) are well-established . . . . It is the Council’s intention that these additional restrictions will help protect children and nonsmoking adults from the health hazards presented by exposure to ETS.” 

New York City Department of Health and Mental Hygiene - Public Bulletin  “Answers to Common Objections to Smoke-Free Workplace Laws.”  (2002)

Q: This is America. Don’t citizens have a right to smoke, even if it hurts them?
A: Yes, smokers are free to continue to smoke—as long as they don’t expose others involuntarily to cancer-causing chemicals. American democracy has always created laws to protect society from threats to our health and safety. Sometimes limits must be imposed on the right of one individual to engage in behavior that, while acceptable if it affects the individual only, is harmful to others. Protecting people from exposure to second-hand smoke is an example of society acting to safeguard citizens from involuntary exposure to dangerous risk. When one person’s right to engage in certain behaviors conflicts with another person’s right not to be harmed, limits have generally been placed on the harmful behavior. [emphasis added]

City Council Committee on Health Hearing on Intro 256, to amend Chapter 5 – Transcript October 10, 2002

Mayor Michael Bloomberg: 

“Enacting this bill, Intro 256, will not outlaw the right of an individual to smoke and put his or her own life in jeopardy. If someone wants to inhale smoke, directly or indirectly, that’s their right.”

“[Intro 256] should be seen as the just and logical extension of protections against secondhand smoke that already are in place in most public settings.”

“This bill, however, is not designed to stop you from smoking. If you want to smoke, that's your right, and I will defend that. I don't think it’s an intelligent, if that's the one you would make.”

New York City C.L.A.S.H. v. City of New York, 315 F. Supp. 2d 461 (S.D.N.Y. 2004). – Legal Challenge to Local Law 47 / Intro 256 – Court Ruling

Hon. Victor Marrero, U.S.D.J: 

“To the contrary, as discussed in greater detail below, the Smoking Bans serve to protect an important governmental interest -- the health and welfare of persons exposed to ETS in New York State.”

“With regard to Local Law 47, the record illustrates that the New York City Council also considered the mounting evidence against ETS as a basis for its enactment.”

“New York State’s and New York City’s stated basis for enacting the Smoking Bans -- protecting its citizenry from the well-documented harmful effects of ETS -- provides a sufficient rational basis to withstand CLASH’s constitutional challenges.”

1 comment:

  1. Additional information: I've argued above that the inclusion of non-tobacco shisha and smokeless tobacco should, if the Council insists on it, be crafted as a NEW law and not violate the City Charter's "One Subject Rule" by inserting it into the Smoke-Free Air Act.

    I would hope Council Member Julissa Ferraras (D-Queens) applies exactly that point of view which she has applied to the city's dipping into one fund to plug another:

    "That was never the intent... If this fund is going to be used for something different then it should be identified as that and there should be a transparent process. To call that a budget savings is, we believe, a far stretch." (see

    As is the insertion of the aforementioned regulations into the Smoke-Free Air Act a far stretch and a cover (non-transparent) to avoid debate and backlash.