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Battery-operated cigarettes don't violate smoking ban, Cuccinelli says

Rosalind Helderman

Virginia Attorney General Ken Cuccinelli has ruled that battery-operated cigarettes known as e-cigarettes do not violate the state's smoking ban.

Yes, battery-operated cigarettes. The devices have apparently been around for the last few years, marketed as a nicotine delivery system that doesn't cause second-hand smoke. They work by simulating the feeling of smoking providing inhaled doses of nicotine in a vaporized solution.

In his opinion, Cuccinelli writes that the heated vapor produced by e-cigarettes does not constitute "smoke" as the word is "commonly understood" and therefore the devices don't violate Virginia's ban on smoking in restaurants or other public places. (The smoking ban prohibits "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.")

"An e-cigarette does not function in manner of a traditional cigarette because it functions electrically rather than via combustion of a material such as tobacco. Therefore, the vapor emitted by an e-cigarette would not fall within the definition of 'smoke' or 'smoking' in [the state law]," he wrote.

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The opinion was requested by Del. Chris Peace (R-Hanover), who said a constituent called him after she was told by the Virginia Department of Health that the devices do violate the state's smoking ban.

"Common sense tells you that if the purpose of the smoking ban was to create a healthier atmosphere and reduce the individual emissions in a defined space, if you will, with second hand smoke, the e-cigarettes doesn't seem to fit any of those parameters," Peace said.

But the American Cancer Society does not agree. The group has been pushing the Federal Drug Administration to regulate e-cigarettes. A spokesman said it believes the devices were created to get around smoking bans and violate the spirit of smoking bans.
"Allowing them would really be turning back the clock on what we're trying to do in Virginia to create smoke-free workplaces and environments that promote health," said American Cancer Society spokesman Keenan Caldwell.

By Rosalind Helderman  |  April 28, 2010; 2:44 PM ET
Categories:  Ken Cuccinelli , Rosalind Helderman  | Tags: American Cancer Society  
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"Allowing them would really be turning back the clock on what we're trying to do in Virginia to create smoke-free workplaces and environments that promote health," said American Cancer Society spokesman Keenan Caldwell.

Isn't turning back the clock what this administration is all about? What about going forward?

Posted by: Anglo_Rider | April 28, 2010 6:19 PM | Report abuse

The American Cancer Society (ACS) is wrong. According to a University of Alberta study, to be published in Tobacco Harm Reduction Yearbook, only 4% of electronic cigarette consumers are "dual users" who still smoke the same amount of regular cigarettes, while 17% have reduced the number smoked, and 79% are using electronic cigarettes as a complete replacement for all their cigarettes. If the ACS is truly committed to cancer prevention (as it should be) it needs to stop its efforts to ban the products.

Posted by: vocalek | April 28, 2010 7:03 PM | Report abuse

"A spokesman said it believes the devices were created to get around smoking bans and violate the spirit of smoking bans."

If the "spirit" of smoking bans is to force anti-nicotine zealotry down the throat of the public at large, then sure - electronic cigarettes violate that spirit. If the spirit of the smoking ban is to create a healthier indoor environment, then the electronic cigarette violates that spirit no more than an asthma inhaler or nebulizer would.

Of course, it is clear from the glaring refusal to even consider the actual facts related to the matter, that the ACS is not interested in ensuring cleaner air. Instead, they are interested in furthering their own relevance by shouting down those who stand contrary to their ridiculous political posturing related to electronic cigarettes.

Posted by: jesus00 | April 28, 2010 7:10 PM | Report abuse

Using an inhaler for asthma or nicotine is not something that violates a SMOKING ban. Inhaling vapor or steam is not the same as inhaling smoke. This is just common sense. I am glad to see that some of the politicians have common sense.

Posted by: Spikey47 | April 28, 2010 9:23 PM | Report abuse

If there's no smoke, it makes all the sense in the world that the no-smoking ban wouldn't apply.

What's the American Cancer Society's problem? Now they don't like something because it *looks* like smoking? Even if there's no smoke or smell?

That's crazy. These groups are losing all credibility. They should spend their time and OUR money on something worthwhile ... like ... I dunno ... fighting cancer?

Posted by: Treece1 | April 28, 2010 9:37 PM | Report abuse

"A spokesman said it believes the devices were created to get around smoking bans and violate the spirit of smoking bans.
"Allowing them would really be turning back the clock on what we're trying to do in Virginia to create smoke-free workplaces and environments that promote health,""

The devices weren't created to "get around smoking bans". That's absurd. They were created as an alternative to smoking. And how is this turning back the clock in trying to create smoke-free workplaces and environments that promote health? There's no smoke coming from an ecig. Even the slanted FDA testing on the nicotine liquid proves that these are far healthier than cigarettes.

You would think that organizations like the ACS, ALA, AHA and FDA would be excited to see such a better alternative on the market. An alternative that's actually WORKING unlike the FDA approved NRT's.

As a resident of VA, I'm very excited and pleased to hear that there's a sensible person in the Attorney General's position. Thank you Mr. Ken Cuccinelli. You have made my day, sir!

Posted by: autumnbreeze26 | April 28, 2010 9:54 PM | Report abuse

Speaking from experience, I didn't buy an electronic cigarette to get around the smoking bans. When I go out with friends that still smoke I go outside with all the other smokers. You have to question why all the A Associations(American Lung,American Cancer,etc.) are so objected to the e-cig. If they were truly committed to the our health & welfare the would look at the studies & evidence see that e-cigs are better then traditional cigs. 20 years of smoking made me short of breath, lost sense of smell & taste after 2 months of using an e-cig my sense of smell & taste is returning, and I can run and play with my sons without coughing & being short of breath!!

Posted by: Melviria | April 28, 2010 10:07 PM | Report abuse

Electronic cigarettes probably saved my life. I smoked for 39 years and tried most of the approved methods to quit - no help. I wasn't trying to quit smoking or evade bans when I tried them. I was hoping I could cut back and stink less and make less mess. To my surprise, I had completely switched over within a month. I can breath again. I can smell again. No ash, no tar build up in my house or car. My pets don't run away when I use them. NO SECOND HAND SMOKE! NO SMOKE AT ALL. These associations want us to quit or die, simply to justify their own continued existence. I refuse.

Posted by: Mike_Dennis1 | April 28, 2010 11:01 PM | Report abuse

I, personally, applaud A.G. Cuccinelli's decision, based on common sense instead of the fear-mongering that litters this battlefield of the E-Cig, and in the same breath have to condemn the statement of the A.C.A. in this article.

The E-Cig is the very spirit of innovation coming to solve the troubles of the smoking bans as a win/win IF looked at with the same common sense. The anti-smoking groups get their cleaner air, and the smokers get their nicotine.

I wish someone would ask the ALA, the ACA, the AMA, and the FDA WHY there is a push to vilianize this technological wonder and push an excess of ONE MILLION US vapers BACK to smoking tobacco?

I won't be holding my breath for an answer.

Posted by: VicksVaping | April 28, 2010 11:21 PM | Report abuse

What these so called "health" associations are doing is alarming. I believe at one time they had good intentions. However, anymore they just come off as the consumer lobbying arm of the Pharmaceutical industry.

If they were truly concerned with improving the health of the citizens of this country, they would be fighting for making products like the Electronic Cigarette as available as possible. Rather than objecting to them as well as products like Swedish snus, Arriva Lozenges, Orbs and other new, harm reduction products that are becoming available to stop people from smoking, they would be selling these alternatives to the smoking public and identifying the level of their safety in comparison to cigarettes.

Instead they talk about elevated risks compared to "safe" when we know that much of what people do is not completely safe. They talk about protecting the children by removing flavors that will entice children to use the products. Yet, I hear no such outcry about flavored Pharmaceutical NRT products. I don't see them talking about the fact these these products are about as safe as the products that the Pharmaceutical industry sells at exorbitant prices with very limited success. These new products will, if allowed to remain available (which is in doubt do to the pressure that these "health" organizations has placed on the FDA), reduce the level of smoking much more effectively than anything that we have seen in the past. They are currently affordable which is a key to have many smokers "find" as an alternative to cigarettes as the price of cigarettes continues to rise. They provide the hand to mouth habit, which may be as big a psychological factor in stopping smoking as the nicotine is an addictive one.

I was a two to three pack of cigarettes a day user until I started using my personal vaporizer, my preferred name for these products. I smoked for 43 years and tried dozens of times to quit with the approved products. My success was always brief and always returning to smoke more than I did before I quit. After starting these, I immediately dropped to a half dozen real cigarettes and stopped coughing and wheezing from the fire suppressant that was added the cigarettes in the last year.

Those symptoms went away almost immediately, but I couldn't get rid of those last few cigarettes for months. I found the E-cigarette-forum and learned that there were other products that could help. I purchased Swedish snus which was the missing piece for me and have not had a cigarette since. A little snus each day and the PV to give me that hand to mouth and I am a non-smoker. It works and is ecologically and non-smoker friendly. Believe it!

Posted by: Rothenbj | April 28, 2010 11:48 PM | Report abuse

Thank you AG Cuccinelli for acknowleding that there is a difference between smoke and water vapor.

Rather than people focusing on this being a way "around regulation" try to see it as a way for smokers to reduce the health risks associated with smoking.

Why do the FDA, ALA, ACA, AMA et.,al refuse to acknowledge the harm reduction potential for these devices? They produce WATER VAPOR! There is no combustion therefor no smoke!

I'm beginning to think that these organizations' only concern is protecting their income streams from donations rather than the true welfare of the people who suffer from tobacco smoking related illnesses.

Perhaps chipping away at smoking addiction via harm reduction is more realistic than prohibition.

Posted by: GEP1 | April 29, 2010 12:09 AM | Report abuse

I thank AG Cuccinelli for investigating the issue before making snap judgments as many have done.

I smoked cigarettes for 37 year prior to picking up a personal vaporizer a few months ago on impulse. I had tried all the gums and patches before in attempts to quit smoking.

On the third day, I noticed that I had only smoked 3 cigarettes all day.

After that I knew I could make the switch and have not had a cigarette since.

These items have nothing to do with smoking bans or cherry flavored stuff for kids. It has to do with adults making a choice to inhale something else instead of the toxic cocktail I had in cigarettes for all those years.

I feel much better and can now smell smoke on other people the way non-smokers always told me they could.

Posted by: windsage | April 29, 2010 12:36 AM | Report abuse

Finally someone that makes sense. Vapor does not equal smoke. My biggest concern is the American Cancer Society's stance on E-cigarettes. Why are they against a healthier alternative to smoking? Talking about taking a step back. Shouldn't healthier alternatives be encouraged not banned? I don't know about guys but that would seem like the logical answer correct?

Posted by: jrdesjardins | April 29, 2010 1:39 AM | Report abuse

When someone exhales while using an e-cig, does any nicotine come out? If it does put it into the general air supply like smoking did, then they are still a problem. I do believe the FDA should egulate them as they are technically a drug delivery device, but as long as I don't have to inhale the drug while talking to them or standing next to them, then it should not run afoul of the smoking ban.

Posted by: schnauzer21 | April 29, 2010 8:37 AM | Report abuse

I'm encouraged to see the Virginia AG take a common sense approach to this product. Since there is no evidence that this product causes cancer and in fact has helped thousands of people reduce or eliminate the use of cancer-causing tobacco cigarettes, I'm baffled as to why the American Cancer Society is against them.

Posted by: NICKOFTIME | April 29, 2010 9:25 AM | Report abuse

Seems like a followup article is needed... When this many WaPo readers agree with Cuccinelli, something might be up.

Posted by: BruceFairfax | April 29, 2010 10:47 AM | Report abuse

This exposes what the ACS and most other public health advocacy organizations are all about - money! The e-cigarette threatens them because they could lose billions in tax revenue if it ever makes a significant dent in the consumption of real cigarettes, which Big Pharma nicotine replacements and drugs like chantix have failed to do. This is an acceptable replacement and thats why they are against it. To the poster who is afraid of inhaling secondhand nicotine - get a clue! The amount of nicotine in the exhaled vapor is negligible - you can't even smell or taste it. Thanks Ken Cuccinelli - I may not agree with you on everything, but here you have shown some common sense.

Posted by: gouZgounis | April 29, 2010 12:45 PM | Report abuse

Isn't turning back the clock what this administration is all about? What about going forward?
A smokeless cigarette is a step forward. I bet if this was about an electronic joint you would think it was great and that people should be allowed to use them in McDonalds or Starbucks.

Posted by: gouZgounis | April 29, 2010 12:54 PM | Report abuse

People need to open their eyes and realize that the federal regulation administrations (such as the FDA & the ACS)have in fact become multi-billion dollar industries that are fueled by the lobbyists in Washington.
E-Cigs are truly the evolutionary leap FORWARD for smokers that find themselves currently enslaved by the all powerful BIG tobacco companies. E-Cigarettes have given thousands of people back their freedom and in fact their health. I perosonally bought mine from because they are more affordable and have been great quality wise. They have helped thousands of people switch to this miraculous product or at least drastically reduce the amount of tobacco cigarettes they smoked. This product should have been available to us years ago. STOP THE LOBBYING! People's lives are more important than money!

Posted by: Ruxy | April 29, 2010 3:28 PM | Report abuse

Well, I'm glad that mister Cuccinelli took the time to explain to health department worker Gary Hagy that he is not allowed to just reinterpret the law depending on his mood.

And I feel very sad that for some reason the American Cancer Society can't hire people that are better educated. Keenan Caldwell doesn't seem to be able to understand the difference between smoke and vapor. I'd really like to sit him down with a match and a tea kettle and explain the difference.

Posted by: Zofryer | April 29, 2010 4:56 PM | Report abuse

Thank goodness, sanity. It seems the FDA is not the least but interested in public health or they would welcome electronic cigarettes with open arms. One must wonder who they are really looking out for, Big Tobacco, Big Pharmacy or both. They certainly aren't looking out for smokers who are looking for a less harmful alternative to both themselves and those around them.

Hooray for Virginia Attorney General Ken Cuccinelli, smart fellow.

Posted by: ajmoore1 | April 29, 2010 8:21 PM | Report abuse

Join me in trying to turn the American Lung Associations attitude about e-cigarettes around:

Pledge to NOT donate to them at:

Thank you

Posted by: hkholer | April 29, 2010 10:42 PM | Report abuse

Thank you Virginia! For a while I was concerned that my state was going to fall victim to reactionary, uninformed politicians. Thank goodness our AG has managed to take a serious look at the science and recognize that e-cigarettes are only related to cigarettes by name.

Electronic cigarettes are one of the greatest inventions of this decade. They are saving thousands and thousands of lives. Every once in a while something fantastic comes out of the woodwork bypassing all the big R&D players. This is one of those things. They work. They help many people be successful at quitting smoking.

I hope others will learn from this opinion and take the time to educate themselves before passing judgment on this very important issue.

Posted by: guineahill | May 1, 2010 6:55 PM | Report abuse

Finally some good news... the misinformation that is being produced trying to get the e-cig banned or regulated is a blatant attempt to stop one of the only effective methods for people to reduce thir dependence on harmful tobacco cigarettes. Ban the cigarettes, not the e-cig. But that would cause a huge tax revenue to disappear, so that ain't gonna happen. Big Tobacco, Big Pharma, the FDA, and your local state government all want you to keep smoking a product proven to cause death, because if you are smoking e-cigs you are not lining their pockets with money.

Posted by: djtonyb | May 2, 2010 6:59 PM | Report abuse

Electronic Cigarettes are the greatest thing since sliced bread. They enabled me and many of my friends to quit smoking tobacco cigarettes that were killing us, and feel 1000 percent better and even have a better complextion since qitting smoking. After nearly two years being tobacco free I now breath as good as I did when I started smoking cigarettes 37 years ago. I can now sit in a meeting with my co-workers and not reek of the sent of an ash tray and offend the non smokers in the room. We are lucky to have a full service retail store, NO Smoke VA, here in Richmond, 414 N 3rd St, that offers a life time warranty on all of their products. They are very knowledgable and will let you try before you buy. Their web address is

Posted by: blackboxllc | May 3, 2010 1:35 AM | Report abuse

The position of the American Cancer Society is appallingly disengenuous - the "spirit" of smoking bans? They don't even pretend to care about ending, curing, treating, or preventing cancer anymore. They make a grotesque mockery of the good-hearted citizens who still naively raise money for this money hoarding group of professional fundraisers, thinking they are actually doing something for people who have cancer and their families.

Posted by: habari2 | May 4, 2010 11:57 PM | Report abuse

Posted by: 5w4182 | May 5, 2010 7:56 PM | Report abuse

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