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Bill aimed at combating 'third-hand smoke' awaits Cuomo's signature

It would prohibit smoking at all times in rooms used for licensed child day care in homes, even when children aren't in the house or apartment.

ALBANY — Legislation that supporters say would be one of the nation’s first measures aimed at combating “third-hand smoke” is awaiting Gov. Andrew M. Cuomo's signature.

The bill, passed by the State Senate and Assembly in June, would prohibit smoking at all times in rooms used for licensed child day care in homes, even when children aren’t in the house or apartment.

Supporters say the idea is to reduce cigarette residue left on furniture and walls long after smoking ceases.

An opponent said the proposal represented an unconstitutional intrusion into the home.

The Senate and Assembly passed the bill in June. It is now up to Cuomo to sign or veto by the end of the year.

In a memo in support of the bill, legislators cited research showing residual contamination from cigarette smoke on carpets, walls, sofas, clothing and toys can linger for months after smoking stops. Researchers said the residue can be ingested by breathing and touching.

“The evidence is overwhelming and compelling: Tobacco leaves behind a toxic, persistent and costly legacy wherever it has been used regularly,” said Georg E. Matt, a professor of psychology at the San Diego State University Foundation who is part of a team studying third-hand smoke.

The research showed “massive amounts” of third-hand smoke in an apartment three years after a heavy smoker left the residence and at a level similar to that of a home with active smokers, he said.

The study found 500 to 5,000 micrograms of nicotine in persistent residue years after heavy smoking. Matt said that for reasons not fully understood, the residue had levels of nicotine similar to levels found in casinos after 20 years of operation.

Under current New York State law, operators and residents of day care centers are allowed to smoke in rooms used for child care when the centers are closed. The law also allows operators and residents to smoke immediately before children arrive for day care.

The bill’s co-sponsor, Senate Health Committee chairman Kemp Hannon (R-Garden City), said the proposed ban is an outgrowth of the state Clean Indoor Air Act adopted more than a decade ago that prohibited smoking in most public areas indoors.

“This gets a little more specific and starts to ratchet down to where there are some places the Clean Indoor Air Act didn’t include,” Hannon said in an interview.

Assembly sponsor Aileen Gunther (D-Monticello) said the measure is critical to protect children in the many home day care centers that use the operators' kitchens and living rooms to care for kids.

A leading New York advocate for smokers’ rights said the new measure represented an unconstitutional overreach into American homes.

“It’s a sad and dangerous day when fiction created by activist researchers whose methodology and conclusions don’t pass the laugh test is embraced by lawmakers as reason to invade the sanctity of the private home,” Audrey Silk, founder of NYC Citizens Lobbying Against Smoker Harassment, said. “When ignorance and hostility guides such an action we have truly reached a tyranny and no one is safe.”

California enacted a similar measure into law in 2014.

“We suspected that the young are most vulnerable because of their immature immune systems, but we didn’t have a lot of hard evidence to show that before,” said Bo Hang, a Berkeley National Laboratory staff scientist. He previously found that third-hand smoke could lead to genetic mutations in human cells.

Cuomo had no immediate comment on whether he will sign or veto the measure.

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