Attorney General Opinion No.
Background
- State AG opinion addresses whether e-cigarettes are “smoking” under the Kansas Indoor Clean Air Act (K.S.A. 2010 Supp. 21-4009 et seq.).
- Act prohibits smoking in enclosed areas and in various public spaces, with penalties from $100 to $500 for multiple violations within a year.
- E-cigarettes vaporize nicotine liquid, do not contain tobacco leaf, do not emit vapor unless inhaled, and require no flame ignition.
- Sottera v. FDA held the FDA may regulate e-cigarettes as tobacco products under the federal Tobacco Act because nicotine can be derived from tobacco.
- Kansas statutes do not define “cigarette” in the Act; common meaning is applied; ordinary reading of “smoking” requires a lighted cigarette or burning tobacco.
- Court concludes the Act does not apply to e-cigarettes because they are not a “cigarette” under the Act and are not “lighted” or burning tobacco; legislative amendment would be required to covered e-cigarettes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do e-cigarettes fall within the Act's prohibition on smoking? | Pl. argues e-cigarettes emit chemicals like tobacco and may be regulated as tobacco products. | Defendant contends no definition of 'cigarette' and ordinary meaning excludes e-cigarettes; 'smoking' requires a lighted cigarette or burning tobacco. | No; Act does not apply to e-cigarettes |
Key Cases Cited
- Sottera, Inc. v. FDA, 627 F.3d 891 (D.C. Cir. 2010) (upholds FDA authority to regulate e-cigarettes as tobacco products under broad Tobacco Act definition)
- Rogers v. Shanahan, 221 Kan. 221 (1976) (defines ordinary and common meaning for statutory terms in Kansas)