A New York judge handed a victory to vapers Feb. 5, declaring vaping is not the same as smoking and e-cigarette use is not necessarily banned in all the same places as smoking.

“An electronic cigarette neither burns nor contains tobacco,” said the court. “Instead, the use of such a device, which is commonly referred to as ‘vaping,’ involves the inhalation of vaporized e-cigarette liquid consisting of water, nicotine, a base of propylene glycol or vegetable glycerin and occasionally, flavoring.”

The issue was brought to the court in the case of People v. Thomas, after vaper Shawn Thomas was issued a citation on the subway and subsequently challenged the citation in court. New York law defines smoking as “the burning of a lighted, cigarette, pipe or any other matter or substance which contains tobacco.”

The state claimed there was no need for a specific state-wide ban on vaping to justify the citation, since “the courts of New York have yet to make a determination as to whether electronic cigarettes are to be viewed any differently under these sections than tobacco cigarettes.”

This argument was dismissed by the judge since vapor products don’t align with the state’s definition of smoking since they contain no tobacco.

New York does, however, already have explicit vaping bans in some public areas. “Since April 29, 2014, it has been illegal under New York City’s Smoke-Free Air Act to use electronic cigarettes in certain public places. The New York State legislature is also well aware that the Public Health Law does not currently prohibit the use of electronic cigarettes,” the court said.

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