Smoking and the use of Electronic Cigarettes under the New York City Smoke-Free Air Act (Chapter 10)

Adopted Rules: Closed to Comments

Agency:
Effective Date: 
Monday, March 16, 2015
Download Copy of Adopted Rule (.pdf): 

Statement of Basis and Purpose

 

Statutory authority

 

These amendments to Title 24 of the Rules of the City of New York are issued pursuant to §§ 556 and 1043 of the New York City Charter (“Charter”), and §§ 17-503, 17-504, 17-505, 17-506,   17-513, 17-513.3 and 17-513.4 of the Administrative Code of the City of New York (“Administrative Code”).

 

Pursuant to § 556 of the Charter, the Department of Health and Mental Hygiene (the “Department” or “DOHMH”) has jurisdiction to regulate all matters affecting health in the City of New York.  Section 1043 of the Charter empowers the Department to adopt rules necessary to carry out the powers and duties delegated to it.  Chapter 5 of Title 17 of the Administrative Code authorizes the Department to make rules with regard to smoking and electronic cigarette use.

 

Basis and purpose of the rule

 

On December 30, 2013, Local Law 152 was enacted.  It amended §§17-502, 17-503, 17-504, 17-505, 17-506, 17-507, 17-508, 17-510, 17-512 and 17-513.2 of Chapter 5 of Title 17 of the New York City Administrative Code (“Smoke-Free Air Act”).  It also added §§17-513.3 (Retail Tobacco Store and Retail Electronic Cigarette Store Registration), and 17-513.4 (Retail Tobacco Store and Retail Electronic Cigarette Store Verification) to Chapter 5.  Effective April 29, 2014, the local law prohibits the use of electronic cigarettes in all locations where smoking is currently prohibited, and effective October 26, 2014, requires establishments to post signage informing customers of these new restrictions.  Local Law 152 also requires both retail tobacco stores and retail electronic cigarette stores to register with the Department of Health and Mental Hygiene (“DOHMH”), and grants the Department authority to establish a system for verifying the total annual gross sales of retail tobacco stores and retail electronic cigarette stores to determine their eligibility for certain smoking and electronic cigarette use exemptions.

The Department is amending Chapter 10 of Title 24 of the Rules of the City of New York (RCNY) to reflect amendments to the Smoke-Free Air Act made by Local Law 152, and repeal provisions of Chapter 10 that are no longer applicable due to these amendments to the Smoke-Free Air Act. The amendments also clarify certain provisions in Chapter 10 to facilitate compliance with, and enforcement of, the Smoke-Free Air Act.  These amendments, together with the provisions of Chapter 5 of Title 17 of the Administrative Code, affect the use of electronic cigarettes in enclosed areas in public places and in places of employment in New York City.

The rule:

  • Specifies the locations where electronic cigarette use is prohibited;

 

  • Specifies the content of the signage required in locations where electronic cigarette use is prohibited;

 

  • Describes the registration requirements for retail tobacco stores and retail electronic cigarette stores; and

 

  • Repeals obsolete provisions of the Department’s Rules related to separate smoking rooms in bars and owner operated bars that have been repealed in the Smoke-Free Air Act.

 

Comments and changes to the proposal

 

                 An owner of a local electronic cigarette store requested that e-liquid and electronic cigarette accessories be specifically referenced in § 10-17, so that their sales are considered when determining whether a store is a retail electronic cigarette store that must register with the Department.  This change is unnecessary.  The definition of electronic cigarette in § 17-502(qq) of the Smoke- Free Air Act as amended by Local Law 152 includes “any refill, cartridge, and any other component of an electronic cigarette,” and that same definition is being adopted here.  Thus, sales of e-liquid and accessories are already included in “electronic cigarette sales” in § 10-17.

 

An electronic cigarette trade association requested that the rule exempt adult venues such as bars and nightclubs, certain privately owned businesses, and outdoor locations such as parks and beaches, from the prohibition on electronic cigarette use in locations where smoking is prohibited.  However, the Smoke-Free Air Act does not exempt any of these locations. 

 

One change has been made to these amendments to Chapter 10.  The annual registration requirement for retail tobacco stores and retail electronic cigarette stores has been eliminated in §§ 10-16 and 10-17 to simplify the registration process for both retailers and the Department to a one-time registration.