Does Virginia's smoking ban apply to e-cigarettes in 2010, before they had their own statutory category?

Plain-English summary

Delegate Christopher Peace asked the AG to interpret Virginia's smoking-ban statutes (§§ 15.2-2820, 15.2-2824(A), 15.2-2825(A)) in light of a then-new product: the e-cigarette. Section 15.2-2824(A) prohibited smoking in elevators, public school buses, and the interiors of public elementary, intermediate, and secondary schools. Section 15.2-2825(A) banned smoking in restaurants. Section 15.2-2820 defined "smoke" or "smoking" as "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."

AG Cuccinelli concluded an e-cigarette does not fall within that definition. The opinion gave two reasons.

First, an e-cigarette produces vapor, not smoke. The dictionary's primary definition of "smoke" is "the gaseous products of burning carbonaceous materials made visible by the presence of small particles of carbon." There is no combustion in an e-cigarette. The dictionary's secondary definition (fume or vapor often resulting from the action of heat on moisture) is not the ordinary understanding of the word: nobody calls the vapor coming off a tea kettle "smoke." Statutes are construed according to ordinary and plain meaning (Winborne v. Va. Lottery).

Second, an e-cigarette is not "lighted" in the ordinary sense. It is battery-powered. The verb "light" means "to ignite something (as a cigarette)" or "to set fire to." No flame is involved in an e-cigarette.

The opinion thus answered only the narrow statutory-interpretation question: as of April 2010, e-cigarettes were not regulated by Virginia's smoking-ban statutes. It did not opine on whether the General Assembly should add them, or on local ordinances that might use a broader definition.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the General Assembly later amend the law to include e-cigarettes?
A: This opinion only addressed the statute as it stood in April 2010. Subsequent legislative action on vaping is not part of this opinion's scope; check current law for the contemporary answer.

Q: Could a local ordinance reach e-cigarettes?
A: The AG did not address local ordinances. Section 15.2-2825 (the restaurant smoking ban) preempts local rules in certain respects; a careful analysis of preemption and any locality's particular ordinance would be needed.

Q: What about a 'no smoking' rule on private property?
A: A private property owner or employer is generally free to ban e-cigarettes regardless of how the statute defines smoking. Statutory definitions limit public-law enforcement; they do not restrict private contracting.

Q: Why did the opinion cite a 1500s English writer?
A: The Third New International Dictionary's broad "fume or vapor" definition of "smoke" was illustrated by a quote from John Lyly. The AG used that to acknowledge the broad definition existed but to argue that the ordinary modern meaning does not include exhaled vapor.

Background and statutory framework

The Virginia smoking-ban provisions sit in Title 15.2, Chapter 28. Section 15.2-2820 supplies the definitions; § 15.2-2824(A) lists the places where smoking is prohibited; § 15.2-2825(A) is the restaurant-specific ban. The statute predates widespread e-cigarette use, and its definitional terms ("lighted," "smoke") were drafted with combustion-based products in mind.

The Winborne case is the Virginia Supreme Court's recent restatement that statutes should be construed using "ordinary and plain meaning." The dictionary citations (Merriam-Webster's Third New International Dictionary and Collegiate Dictionary) supply the ordinary meanings of "smoke" and "light."

Citations

• Va. Code Ann. § 15.2-2820 (definitions of "smoke" and "smoking")
• Va. Code Ann. § 15.2-2824(A) (smoking prohibited in specified places)
• Va. Code Ann. § 15.2-2825(A) (smoking prohibited in restaurants)
• Winborne v. Va. Lottery, 278 Va. 142 (2009) (statutory construction by ordinary meaning)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-029-Peace.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

April 27, 2010

The Honorable Christopher K. Peace
Member, House of Delegates
P.O. Box 819
Mechanicsville, Virginia 23111

Dear Delegate Peace:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether an e-cigarette falls within the definition of smoke or smoking for purposes of § 15.2-2820.

Response

It is my opinion that using an e-cigarette does not fall within the definition of "smoke" or "smoking" for purposes of § 15.2-2820.

Background

You relate that an electronic cigarette, also known as an e-cigarette or a personal vaporizer, is a battery-powered device that provides inhaled doses of nicotine by way of a vaporized solution. You note that the e-cigarette serves as an alternative to traditionally smoked tobacco products, such as cigarettes, cigars, or pipes. Finally, you observe that the e-cigarette produces no smoke and no combustion is involved in its operation.

Applicable Law and Discussion

Section 15.2-2824(A) prohibits smoking in a variety of locations, including elevators, public school buses, and the interior of public elementary, intermediate and secondary schools. Section 15.2-2825(A) forbids smoking in restaurants. Finally, § 15.2-2820 defines "smoke" or "smoking" as "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."

First, an e-cigarette does not involve the "inhaling, or exhaling of smoke." Smoke is defined as "the gaseous products of burning carbonaceous materials made visible by the presence of small particles of carbon."[1] To be sure, one definition of smoke is "fume or vapor often resulting from the action of heat on moisture."[2] That, however, is not the way the term smoke is commonly understood.[3] Statutes should be construed under their "ordinary and plain meaning."[4] Water vapor containing traces of particulate matter, such as water evaporating from a tea kettle, is not ordinarily understood to be "smoke." 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.[5] Therefore, the vapor emitted by an e-cigarette would not fall within the definition of "smoke" or "smoking" in § 15.2-2820. Second, an e-cigarette is battery powered and is not "lighted" as that term is commonly understood.[6] No flame is involved in its operation.

Conclusion

Accordingly, it is my opinion that using an e-cigarette does not fall under the definition "smoke" or "smoking" for purposes of § 15.2-2820.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

1. MERRIAM-WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 2152 (1993).
2. Id.
3. The Third New International Dictionary provides, as an illustration of the "fume or vapor" definition of "smoke," a quote from sixteenth-century English author John Lyly: "steeds ... whose breaths dimmed the sun with [smoke]." Id. Referring to exhalation as "smoke" is not a common use of the term "smoke."
4. See, e.g., Winborne v. Va. Lottery, 278 Va. 142, 148, 677 S.E.2d 304, 306 (2009).
5. See, e.g., http://www.ecigaretteschoice.com/pages/How-it-Works.html (last visited Apr. 19, 2010) (explaining how e-cigarette works).
6. See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 671 (10th ed. 2001) (defining "light" to mean "to ignite something (as a cigarette)" or "to set fire to").