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CEI Challenges Illegal "Vapes on a Plane" Regulation

Today, CEI, the Consumer Advocates for Smoke-free Alternatives Association (CASAA), and CEI employee Gordon Cummings, as a private individual, filed a lawsuit challenging the Department of Transportation’s (USDOT) recent regulation extending the existing statute prohibiting smoking aboard aircraft to cover electronic cigarettes. The reason is simple: Congress never gave regulators the power to prohibit e-cigarette use aboard aircraft.

The agency is inventing authority it clearly does not have. Congress granted USDOT power to implement its law under 49 U.S.C. § 41706 prohibiting “[a]n individual from smoking” during a scheduled flight and to “require all air carriers and foreign air carriers to prohibit smoking.” Yet, as even USDOT conceded in its proposed rule, electronic cigarettes do not combust any material or produce smoke. Thus, it is impermissible to rely on Congress’s no-smoking statute to promulgate a regulation outlawing e-cigarette use on aircraft. Anyone concerned about government wrongfully trampling on the rule of law should be worried by this abuse of power.

As CEI and CASAA noted in comments to the agency in 2011:

Statutes should be construed under their ordinary and plain meaning. Merriam-Webster defines smoke as “the gaseous products of burning materials especially of organic origin made visible by the presence of small particles of carbon.” An e-cigarette produces no smoke and no combustion is involved in its operation. As the D.C. Circuit panel noted in Sottera, e-cigarettes “are battery-powered products that allow users to inhale nicotine vapor without fire, smoke, ash, or carbon monoxide.” 627 F.3d at 893 (emphasis added). DOT’s arguments that the use of e-cigarettes resembles smoking have nothing to do with the fact that their use does not involve smoking. For example, the fact that this use involves “an inhalation and exhalation similar to smoking cigarettes” (76 FR 57,009) means nothing. Blowing air through a straw (such as the hollow plastic coffee stirrers handed out by flight attendants, which passengers occasionally play with in this manner) also involves inhaling and exhaling, but it hardly constitutes smoking.

As I noted last year in an article for CNN.com:

The DOT states that Congress’ intent in prohibiting smoking in the skies was to “improve air quality within the aircraft, reduce the risk of adverse health effects on passengers and crewmembers, and enhance aviation safety and passenger comfort.” The law was intended to address secondhand smoke, and the department concedes “a vapor, rather than smoke, is produced.” So how does the Department of Transportation justify its proposal? By noting, that e-cigarettes “require an inhalation and exhalation similar to smoking cigarettes.”

So, by DOT’s logic, when Congress referred to “smoke” and “smoking,” it meant anything that might vaguely resemble smoke and smoking, rather than smoke itself and its resulting harms, even though Congress enacted a clear law in which the terms “smoke” and “smoking” are not ambiguous.

The Department of Transportation has no authority to regulate vaping, an area over which it has no jurisdiction. It may claim that it is simply interpreting “smoking” to cover the use of e-cigarettes, but as the Supreme Court has made clear, an “agency may not bootstrap itself into an area in which it has no jurisdiction” by stretching the language of a statute.

Fundamentally, this is a rule of law issue. Regardless of your views on vaping on planes, the statute USDOT is attempting to illegally rewrite does not cover smoke-free vapor products. As had been the case until the final rule, airlines voluntarily prohibited vaping aboard their aircraft. This should be their right and it should be preserved and respected.

Moreover, there are already adequate legal means by which airlines can enforce these policies. A passenger who “interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties,” which includes disobeying an order from the flight crew to refrain from using e-cigarettes, is already subject to criminal penalties under 49 U.S.C. § 46504.

To give regulators a fig leaf of lawfulness, some in Congress are now seeking to amend the no-smoking statute to specifically include electronic cigarettes, thereby retroactively validating USDOT’s illegal regulation and mooting legal challenges to it. This is problematic for two reasons.

First, it ignores USDOT’s abuse of authority, in effect immunizing the agency from legal challenges and emboldening the federal bureaucracy to carry out similar lawless acts in the future. It also suggests that Congress does not believe USDOT had the authority to issue this final rule.

Second, it equates the risks of environmental tobacco smoke and the water vapor produced by electronic cigarettes. This position is nothing more than nanny-state tut-tutting wrapped in public health garb. Ironically, as has been noted by intellectually honest public health researchers and campaigners, falsely equating the risks of smoking and vaping may lead smokers to reject far-safer vapor products, thus leading to more tobacco-related illnesses and deaths.

At the London Drug and Alcohol Policy Forum held two weeks ago, Professor Gerry Stimson, one of the U.K.’s leading substance abuse researchers and campaigners, highlighted the important market innovation that e-cigarettes represent (see his full lecture here):

E-cigarette makers, vaping stores, vaping forums and vapers are the new frontline in helping people switch from smoking. It is an example of public health objectives being delivered without the involvement of public health professionals.

I started off by bemoaning the antipathy shown by many public health opinion leaders. I wanted them to be involved. But now I realise they only have a small part to play. Unlike for HIV/AIDS, the role of experts is minimal—there is no need to invest in costly services.

Their main role is to endorse the use of e-cigarettes, to reassure the public of their safety, and not to create obstacles to their use. Put simply, to enable vapers to bring information to their peers. It’s vapers who are now leading smoking cessation.

And just today, the U.K.’s Royal College of Physicians released a groundbreaking report concluding that “[l]arge-scale substitution of e-cigarettes, or other non-tobacco nicotine products, for tobacco smoking has the potential to prevent almost all the harm from smoking in society.” Professor Stimson’s view is now the dominant outlook of the U.K.’s health officialdom, which actively promotes vaping as a powerful tobacco harm reduction technique. Unfortunately, the U.K. is a bit more thoughtful on smoking cessation programs than several members of Congress, who continue to wage a toxic political war on vaping at the behest of consumerist special interest groups.

Congress should reject their e-cigarette provisions in the dueling House (Amendment 71 from Del. Eleanor Holmes Norton (D-D.C.) (roll call)) and Senate (Section 5030, added during Commerce Committee markup by Amendment 18 from Sen. Richard Blumenthal (D-Conn.)) FAA reauthorization bills, either by removing these sections in conference or, preferably, passing a clean one-year extension of the current FAA law, giving lawmakers more time to work on important air traffic control, airport financing, and unmanned aircraft system reforms, among other issues that must still be addressed by Congress.