Moving once more against e-cigarettes, Bedford’s Town Board is expected to impose the same strict limits on vaping sales that it decreed last year only to see a judge put them on hold this spring.
The board scheduled a public hearing for next week on a revamped local law which, like last year’s, would ban e-cigarette retailing in most of Bedford. The measure’s swift approval—seen as likely after Tuesday, Sept. 17, hearing—would give the town one of the strongest local laws in the state, Supervisor Chris Burdick said.
The town’s move came amid a crescendo of coast-to-coast vaping headlines, none of them good news for the self-styled tobacco alternative. By week’s end, e-cigarettes nationwide were suspected in at least five deaths and as many as 450 cases of serious lung illness. That led state and federal officials to warn against using vape products while investigators for the Centers for Disease Control and Prevention probe their safety.
In New York, where health officials last week reported 34 vape-related lung illnesses, Gov. Andrew Cuomo, in a weekend statement, echoed the federal recommendation, urging residents to stop vaping pending the outcome of the CDC probe.
Bedford’s proposed new law contains language similar to last year’s prohibitions. But it also comes with a couple of key differences.
The new statute once again forbids sales of so-called “electronic nicotine delivery systems” anywhere other than the commercial strip of Route 117 in Bedford Hills. But in reworking the law, Bedford also took a new legal tack, invoking the town’s broad authority to regulate behavior, and it exempted from its provisions five vaping outlets—two of them in Katonah—that had sued the town.
Katonah Gas & Auto Service, Katonah Service Station and three other Bedford gas station/minimart outlets mounted the legal challenge, which ultimately sidelined the original law’s enforcement. Under the revised law, the five will be allowed to sell their vaping wares despite being located outside the prescribed zone.
The lawsuit, filed last December, argued that Bedford officials had overstepped when they deployed zoning-code provisions to regulate not just land use but commerce as well.
In May, a judge hearing the vape-shop owners’ complaint appeared to agree. State Supreme Court Justice Joan Lefkowitz issued a preliminary injunction barring the town, at least temporarily, from enforcing its prohibitions. She directed both sides to seek a resolution.
Under the settlement hammered out by the town’s attorney, Eric L. Gordon, and the plaintiffs’ lawyer, Lee Pollock, the new ban would exempt both Katonah gas stations as well as their fellow plaintiffs, Bedford Village Service Station of Westchester, Maruti 7 Corp. and Preferred Gas Mart.
Bedford’s revised law, built on a wholly different legal foundation from the original, scraps reliance on the town’s land-use authority to rest instead on its “police power,” a municipality’s well-established right to govern behavior within its borders, Burdick said.
If the Town Board, as expected, enacts the revised statute, Bedford “will have one of the strongest local laws in New York State with regard to the regulation and sale of these products,” the supervisor said.
Even as the law likely moves toward unanimous board approval, not every member is happy with every detail.
Councilman Don Scott, a vocal opponent of the local e-cig outlets, found it “very disappointing that these establishments are still allowed to sell vaping products.” It was especially troubling, he said, given the recent surge in serious lung illnesses linked to vaping.
Scott said he preferred a vaping ban based more “on proximity to children.” Gordon, the lawyer who wrote Bedford’s new law as well as a similar statute for New Castle, downplayed the effectiveness of a proximity provision for Bedford.
In the end, Scott joined in the 5-0 vote for the public hearing, saying, “This settlement, I guess, is better than nothing.”
In response to a question from Councilwoman Kate Galligan, Gordon said the statute would not allow the town to shut down a vape shop convicted even multiple times of selling to someone under 21.
Councilwoman Lee V.A. Roberts, while supporting the new law, noted that the vaping issue “goes beyond the borders of any one municipality.”
“Our children from Katonah go to middle and high school in Lewisboro,” she said, “and I’m unaware if they have any restrictions over there. . . . That’s why I think we have to take a wider approach—not us—but the county or state.”
Neighboring towns, Lewisboro among them, have not yet enacted any vaping bans.
Burdick agrees that effective answers lie in a broader geographical sweep. “We would prefer that the federal, state or county governments take action,” he said late last week.
Discussing the town’s decision to move on its own, he said, “We did not feel that we should sit by idly, waiting for such action in light of the dire health consequences, especially to our youth.”
The spate of serious—even fatal—pulmonary illnesses linked to vaping has launched an official probe by the Centers for Disease Control and Prevention.
While the patients in each of those cases reportedly had used a vape product, exactly what ingredients went into creating the vapor stream was either unknown or not reported. Dr. Dana Meaney-Delman, who is leading the CDC investigation, warned at week’s end against black-market and home-brew vaping.
“Regardless of the ongoing investigation,” she told a press briefing, “people who use e-cigarette products should not buy these products off the street and should not modify e-cigarette products or add any substances that are not intended by the manufacturer.”
Overall, the CDC was warning last week against vaping, at least for now. “Most importantly,” Meaney-Delman said, “while this investigation is ongoing, people should consider not using e-cigarette products.”
Those who do vape, she advised, “should monitor themselves for symptoms—cough, shortness of breath, chest pain, nausea, vomiting, or others—and promptly seek medical attention for any health concerns.”
In New York, the governor endorsed the CDC’s complete-abstinence stance. “People,” Cuomo said, “should not be using vaping products—period.”
E-cigarettes emerged in this decade, marketed to non-smokers as an alternative to combustible tobacco. For those already smoking, vaping’s nicotine-laced stream was touted as a safe way to kick the cigarette habit.
Critics, on the other hand, deem e-cigarettes, especially those with flavored streams, a gateway device. They have the potential, this argument goes, to turn a teen who might otherwise never consider combustible cigarettes into a hooked smoker.
Burdick, for his part, calls the current fatalities—one each in California, Illinois, Indiana, Minnesota and Oregon—“terrible news,” saying, “These deaths, unfortunately, are not likely to be the last.”