RESPONSE TO NYC COUNCIL HEALTH COMMITTEE'S PROPOSALS TO ADD
NON-TOBACCO AND SMOKELESS TOBACCO TO THE "SMOKE-FREE AIR ACT"
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:
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: http://no-smoke.org/document.php?id=273]
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.
ADDENDUM
ONE & ONLY INTENT OF NYC’S 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.”