Can one still smoke (e-cigarettes) when smoking is prohibited?

Question

In USA, mostly everywhere smoking has been prohibited for a pretty long time now. You cannot smoke in buildings, in libraries, in many city parks and bus stops, whilst dining or partying outside on a patio of a bar/nightclub in many cities, private apartments in some cities, anywhere on campus of pretty much every major research university (prohibition usually comes as a condition of "compliance with external cancer research funding requirements", and goes as far as not even providing any designated smoking areas at all anywhere on the whole campus) etc.

However, with the proliferation of electronic cigarettes, it's been increasingly common that someone always thinks that it's OK to smoke in a confined space next to you. Recently, I noticed that the smokers don't even refer to this as "vaping" anymore, but call it straight for what it is — "you smoke?", can be overheard as someone shows off their electronic equipment within a no-smoking area.

It is unclear what's the rationale for such decisions by some members of the public (considering that nicotine is highly addictive), however, a few years ago, I came across a list of smoke-free laws, where sometimes electronic cigarettes were specifically outlawed, whereas other times they were never mentioned; this has also been common on some no-smoking signs at some establishments, which sometimes expressly prohibit electronic cigarettes.

Casual research showed absolutely zero jurisdictions where electronic cigarettes were specifically legislated as being allowed — they're always either expressly prohibited, or not at all mentioned. Logically, as nicotine is widely known to be highly addictive, it would seem reasonable to expect that the prohibitions aren't merely meant to address the risk of cancer.

• From the legal standpoint, is it at all reasonable to expect that smoking electronic cigarettes is prohibited by generic "no smoking" laws and/or signs, or would it be legally allowed unless certain other conditions are met as well?

• Does it at all matter that there is no known jurisdictions that allow one type whilst prohibiting the other? E.g., it's basically always the case that either both electronic and traditional cigarettes are outlawed, or there is simply no mention of the electronic ones in the laws and/or the signs.

Answer 1

From the legal standpoint, is it at all reasonable to expect that smoking electronic cigarettes is prohibited by generic "no smoking" laws and/or signs, or would it be legally allowed unless certain other conditions are met as well?

Under Wisconsin law:

“Smoking" means burning or holding, or inhaling or exhaling smoke from, any of the following items containing tobacco:
1. A lighted cigar.
2. A lighted cigarette.
3. A lighted pipe.
4. Any other lighted smoking equipment.

Assuming that e-cigarettes contain nicotine but not tobacco, it would seem that vaping is not covered under Wisconsin laws prohibiting "smoking". It is, however, still a "nicotine product", so laws applying to "nicotine products" would still apply (for example, you can't sell them to minors.)

It is my understanding that various states word their anti-smoking laws differently. You can't make a generalization without looking at how a particular state has worded its laws. See, for example, this paper, which says "Twenty-eight states do not include e-cigarettes in their definitions of ‘tobacco products’ or ‘smoking,’ eight include e-cigarettes as ‘tobacco products,’ three include e-cigarettes in ‘smoking.’"

Logically, as nicotine is widely known to be highly addictive, it would seem reasonable to expect that the prohibitions aren't merely meant to address the risk of cancer.

When anti-smoking laws were passed, they were touted as a way to prevent people from being exposed to secondhand smoke. If e-cigarettes don't expose others to secondhand smoke, then the rationale for prohibiting their use in public areas isn't present. (Although the reason for the law would be more a Politics thing than a Law thing.)

Answer 2

The answer ultimately depends on what the law actually says. Washington's no-smoking law defines smoking as "the carrying or smoking of any kind of lighted pipe, cigar, cigarette, or any other lighted smoking equipment", and you may not smoke in a public place or place of employment. Under normal interpretations of the words "lighted", an e-cigarette is not lit. The definition also suffers from a typical problem of legal redefinition, that the word "smoking" is redefined, but then is used as part of the definition of "smoking". The law does not define what constitutes "smoking" in the inner sense, so the question would arise whether one "smokes" an e-cigarette and is it "smoking equipment".

Perhaps someone could try getting arrested (actually, ticketed) and challenging the law. The courts might be forced to decide either that the law does not apply to e-cigarettes, or that it does: the outcome would be based on some interaction between political factors and the ideologies of the relevant appellate justices. As it turns out, Washington also passed a law regarding vaping, which says where vaping is prohibited, and it is a much narrower restriction (elevators, and in child-centric facilities such as schools). If someone mistakenly tickets you for public vaping, the ticket would probably be dismissed with no hassle. So now you know a jurisdiction which explicitly treats the two differently. The vaping law was added in 2016 whereas smoking laws have been around for decades – the situation you describe thus used to exist in Washington.

Oregon law, on the other hand, says that "A person may not smoke, aerosolize or vaporize an inhalant or carry a lighted smoking instrument in a public place or place of employment except as provided in ORS 433.850". Inhalant is a term of art referring to substances with nicotine or cannabinoids, with some exceptions for therapeutic usage.

So yuo basically have to know the law of the state.