Stogie Commentary: Cigar Aficionado’s Reviews Are Illegal?
25 Jun 2008
Cigar Aficionado recently released a series of videos on their website about the process they use to review the dozens of cigars that are rated in every issue of the magazine. The problem is, under New York State law, every review is probably illegal.
You see, cigars are usually smoked in their New York offices. They say they make a point of always smoking their cigars in the same place to ensure that the environment isn’t affecting the ratings.
This is a problem because the New York State Clean Indoor Air Act (Public Health Law, Article 13-E) “prohibits smoking in virtually all workplaces.” Unlike an exemption-filled New York City law, the state law does include a few exemptions (including for “retail tobacco businesses” and “cigar bars”), but none that would seem to exempt a magazine’s office (unless the pages of CA are actually printed on paper made from tobacco, which would make the magazine a tobacco retailer).
So, unfortunately, the facts are clear: Technically Cigar Aficionado is likely violating the New York State law. But as you might guess, my purpose in making this observation isn’t to get the magazine in trouble, but to show just how absurd anti-smoking laws are.
The employees of Cigar Aficionado, many of whom are the ones doing the “illegal” smoking, clearly didn’t decide to work there to be in a smoke-free environment. In fact, the writers were chosen for their expertise in cigars, and Cigar Aficionado‘s employees all knew that they would be working in a smoke-filled environment. After all, the word “cigar” is right on the front door.
In other words, there is no victim if and when Cigar Aficionado violates New York State’s smoking ban. Except that having a ridiculous, victimless law on the books diminishes public respect for laws in general. There won’t be—and shouldn’t be—anyone beating down Cigar Aficionado‘s doors to demand that they stop smoking.
Here at StogieGuys.com, we regularly focus on smoking bans in bars, cigar lounges, and cigar parties, but workplace smoking bans are just as wrong. Surely most employers would, as they rightfully should be able to, ban smoking in the workplace.
And that fact goes to show just how unnecessary and unfair workplace smoking bans are. Instead of letting freedom of choice work by allowing most places to ban smoking voluntarily, one-size-fits-all smoking bans are now affecting places where no reasonable person would ever suggest that smoking should be banned.
Now let’s all light up a cigar in honor of violating unjust cigar bans everywhere!
[Editor’s Note: The article has been updated to reflect the complicated nature of Byzantine anti-tobacco laws and to distinguish between the New York State and New York City smoking bans. Additionally, we have contacted Cigar Aficionado for comment.]
photo credit: Stogie Guys
Patrick Ashby
Co-Founder & Editor in Chief
Patrick Semmens
Co-Founder & Publisher
George Edmonson
Tampa Bureau Chief
Call me crazy, but I'd love to see a video about how StogieGuys.com rates cigars. Heck, I get more out of your reviews than CA anyway…
Some time ago, on the "ask the editors" section of their Web site bulletin board, they said they have a ban exemption from New York City, due to the nature of their business. They also have a separate ventilation system, if I recall.
Mike-
Your comment is interesting, but as far as I can tell, unlike the city ban, the New York State smoking ban has only 6 listed exemptions:
1) Private homes and private residences when not used for day care; private automobiles;
2) Hotel or motel rooms rented to one or more guests;
3) Retail tobacco businesses (primary activity is the retail sale of tobacco products and accessories, and the sale of other products is merely incidental);
4) Membership associations where all duties related to the operation of the association are performed by volunteers who are not compensated in any manner;
5) Cigar bars in existence prior to January 1, 2003 (where 10% or more of total annual gross income is from the sale of tobacco products); and
6) Up to 25% of seating in outdoor areas of restaurants with no roof or ceiling enclosure may be designated smoking areas.
The only possibility for an exemption would be as a "retail tobacco business" however, given that the office isn't retail at all, it is hard to imagine that it applies.
Further, if even is CA gets over the retail exemption hurdle, they still have to prove that a magazine is a tobacco "accessory" for the exemption to be valid. Given that reading a magazine is no more directly related to cigars than many other activities – such as drinking or eating – I can't see how selling copies of CA (something I doubt they do at the retail level out of their office) qualifies as a tobacco accessory.
As for noting that they have a separate ventilation system, there is no provision in the state law for an exemption based on that. What it does show is that private businesses will act responsibly when it comes to their employees and their neighbors.
How about the fact that they have videos of editors smoking Cuban cigars in New York City establishments?
Isn't that illegal too?
NB: I couldn't care less if it's illegal, myself. Just thought it was interesting that they don't care about documenting their illegal actions.
Smoking bans means..it is against the law to use or permit a legal product on 'private' property.
Is this the American Way???
The controversy of second hand smoke could be ended quickly by a simple act of legislation. Anyone presenting information represented as science or health reliant information, which is later found to be false or misleading, would be rewarded with a mandatory ten year jail sentence.
I can guarantee the bandwagon of smoker hatred would end overnight and the profiteers would be making deals in self preservation convicting each other. Similar to the last time their ilk rose to prominence and Doctors were hanged at Nuremberg. The laws of Autonomy created in the wake, are largely being minimized by the bigots and zealots of Public Healthism, they are laws we found at the expense of millions who died without them. No one has the right to make health choices for others and no one has a right to demand rights to the detriment of others, especially with the convenience of a lie, as we find in the "toxic effect of second hand smoke".
Snowbird-
Sadly, judging by their prevalence, it seems that smoking bans are in fact becoming the American way.
Hi Patrick,
I don't know if you or some of your readers know this, but the Cigar Aficionado offices are in the same building on Park Avenue South that General Cigar Corp. used to be headquartered. If my source was correct, at the time the law was passed both companies were able to get the old law "grandfathered" by filing within a certain time-frame from the day of passage. I second your emotion about companies acting responsibly when it comes to their employees and their neighbors, but that's pretty much the deal on why they can smoke cigars within the confines of their offices. I'm more inclined to side with G's comment about "openly" smoking illegal Havanas in the U.S.
wow, you guys should really just stick to reviewing cigars. you really think CA would overlook such an issue? quite laughable really. you should have just emailed them before making such a claim. i'm not sure how they got their exemption, but i think it's safe to assume they didn't overlook the law… lol
seriously instead of speculating, why didn't you email them? do that and then post a retraction. Stogie Review would have handled this entire thing differently. they would email CA before posting such nonsense and after a kind hearted reader corrected them, they would thank them and post a retraction instead of acting snooty about it.
True. Once they knew the law was going into effect, both Shanken Communications and General Cigar had to look for some kind of legal recourse or loophole that could exempt them and found it.
To clarify my other point: if the CA staff want to smoke Havanas in NYC, I really don't care. Reviewing Cuban cigars is part and parcel of their editorial coverage. I just thougtht G's comment was interesting in raising the question of "legality."
Gary & Shawn-
As evident by the fact that CA smokes Cuban cigar on camera in the United States, it is not completely clear that they are not in violation of law.
Personally it doesn't bother me at all that they do either (smoke inside or smoke Cubans), that was in fact the point of this commentary – which I purposely made a commentary, not a news article.
I'm not a lawyer, though I am an expert on some legal issues (though not New York's smoking ban), and what I found on New York State's posted information about the "New York State Clean Indoor Air Act" included nothing about the possibility of being grandfathered in.
It, of course, is possible that they found a viable loophole, but that only suggests that there is no reason for the law in the first place… after all, if CA can make the adult decision to be permit smoking, why can't other employers do the same?
But then it is also possible that they simply ignored the absurd law. And with no victim, there is nobody to complain about it. (I would suggest that is probably what is taking place when they smoke Cubans on camera… no one complains so no one enforces the law that we all recognize is pretty absurd.)
Either way, I have emailed CA about this, and if I get a response that I can publish, I will be sure to share it with our readers.
Thanks for the lively debate.
–
Patrick
—
P.S. Shawn- there is nothing "snooty" about my response to Mike's comment. He is correct that there was a New York City smoking ban, that had allowed more exceptions and that CA almost certainly qualified for them. Then later, the more restrictive New York State law went into effect. As I've explained, above, at least according to the information available on New York State's website, there doesn't seem to be an exemption that applies to Cigar Aficionado.
Well stated Patrick. I look forward to reading whatever follow-up you can offer with regard to this topic in the future.
Shawn, your comment was totally uncalled for. If you want to question the content of this article, fine, but don’t take cheap shots. These guys provide us with some of (if not the) best stuff on the web regarding cigars day in and day out—all for free. And based on what Patrick S said, I certainly don’t think their integrity is in question.
No SG reader would argue that the smoking ban is just plain absurd. I'm just disappointed that you guys didn't do a bit more research before posting up such claims.
shawn, seems to me that they did do the research. New York state law lists only six ways to get an exemption for the smoking ban. CA doesn't seem to qualify.
Read it yourself:
http://www.health.state.ny.us/nysdoh/clean_indoor_air_ac...
If there is an exemption and New York doesn't even mention it, how can anyone be expected to know about it?
I still think a quick email to CA would have solved everything. It's kinda silly to think CA's subverting the laws and publishing it. Grandfather clauses would be the most obvious.
Maybe it's just me, but before I would claim somebody's doing something illegal I would do my due diligence. A quick email would have done the trick.
They did email CA. But, as you should know, CA's policy towards the online cigar community is to publicly ignore it to give the impression that they are the only game in town. I would be surprised if they get a response.
Suggesting that another cigar website would have done this better than Patrick S was just low.
Gerry O, good point. I remember reading something similar in Cigar magazine. Apparently, CA fails to even acknowledge the existence of other cigar magazines like Smoke and Cigar Magazine. So I wouldn't hold my breath on a response for StogieGuys.com
shawn writes: "It’s kinda silly to think CA’s subverting the laws and publishing it."
no. given that they publish videos of them smoking Cuban cigars in the US, this isn't silly at all… in fact they do it regularly.
Gerry, Pat emailed them after claiming they were breaking the law. I think before making such a claim there should be some due diligence involved. My comment ruffled some feathers, but DWSC and SR would have gotten verification before stating such a claim against anyone.
And if there's no way of verifying, I think Pat should have used another example.
Raul, I think it's only illegal for US citizens to buy cubans. I don't believe the trade embargo against cuba has any provisions against smoking cubans. Kinda pointless right?
I'm against smoking bans and the embargo as much as the next guy, I just think before claiming someone is breaking the law that due diligence was performed. Is that really asking for too much? I
shawn-
you are wrong about the Cuban embargo. smoking, owning, possessing Cuban cigars is illegal… so (once again I point out), it IS clear that CA does break some laws.
As for verifying, there is one certain way. He could have called the NY State department that enforces the law. but I'm glad they didn't. Imagine if Patrick is correct and a call to verify leads to CA's offices getting shut down. That would surely be a bad thing for all involved. No?
And as for DWSC and SR, they don't generally write news or commentary articles. So your point rings hollow there to.
BTW shawn, weren't you the one bitching about the Stogie Guys not admitting mistakes? Given that the mistakes seem to be yours and not theirs, maybe you should follow your advice.
I said I THOUGHT the embargo didn't cover smoking cigars? You really think it's on the same level as accusing someone of breaking the law??? The later could be considered defamatory.
We have 2 posters (mike and gary) point out the clause that allows CA the ability to smoke in their offices. Did you miss that RAUL? You said the mistake was mine and not SGs? Mike got it from the editor himself, Raul. How did you miss that?
Accusations without due diligence and verification is unacceptable. What world do you live in? If you can't prove it one way or the other, you can't in good conscious run the story. what's so controversial with that?
DWSC and SR, whether it be reviews, news, or commentary, would never make unverified accusations. Most people wouldn't make unverified accusations, it's irresponsible.
I found it! This is a December 2006 bulletin borad post by Gordon Mott, CA's executive editor on smoking in the magazine's office:
Under the New York State (and New York City), specific exemptions were created for companies that are involved in the tobacco business. We fall under that exemption. Thank Goodness!
There are some additional rules that must be followed, like all smoking taking place behind a closed door.
But it does mean that we can sit our desk, post to this message, and still have a lit cigar in our hands.
***
"Under the New York State (and New York City), specific exemptions were created for companies that are involved in the tobacco business. We fall under that exemption…"
This is what I was referring to in my original post.
Thanks for doing the leg work Mike. at least it's settled once and for all.
Well mike, let's hope they're correct.
But it still shows the hypocrisy of these laws. If there really are about "public health" they should be all or nothing. When exemptions are made, it just shows that theses laws aren't about health, but about telling people that they don't have the right to choose to work in a place where there is smoking.
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