CEI Files Opening Brief in “Vapes on a Plane” Lawsuit

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CEI filed its opening brief yesterday against the U.S. Department of Transportation’s (DOT) final rule prohibiting electronic cigarette use aboard aircraft. CEI originally filed suit in April and was joined by the Consumer Advocates for Smoke-free Alternatives Association (CASAA), and CEI employee and e-cigarette user Gordon Cummings.

The opening brief is here. An April blog post sketching out our objections to the final rule can be found here. In addition, CEI and CASAA’s 2011 comments to DOT are available here. And this ongoing litigation can be tracked here.

In our brief, we argue the DOT lacks the authority to impose a ban on e-cigarette use aboard aircraft. DOT cites three statutes that it claims supports its intervention:

  1. 49 U.S.C. § 41706, Prohibition against smoking on passenger flights, implemented at 14 C.F.R. Part 252
  2. 49 U.S.C. § 41702, An air carrier shall provide safe and adequate interstate air transportation
  3. 49 U.S.C. § 41712, Prohibiting air carriers from engaging in unfair or deceptive practices and unfair methods of competition

On the first, we’ve noted repeatedly that 49 U.S.C. § 41706 provides that “[a]n individual may not smoke” in “an aircraft.” The statute unambiguously refers to the act of combusting tobacco products, which produce smoke. In fact, in its 2011 proposed rule, DOT itself conceded that “a vapor, rather than smoke, is produced” by e-cigarettes. Several state courts and attorneys general have concluded that anti-smoking statutes do not include e-cigarettes, noting that e-cigarettes neither combust tobacco nor produce smoke. Indeed, the U.S. Court of Appeals for the D.C. Circuit, which is reviewing this case, noted in Sottera Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010) that e-cigarettes emit “nicotine vapor without fire, smoke, ash, or carbon monoxide.”

On the second, with respect to the requirement that airlines provide “safe and adequate” service, DOT in essence concedes that health is not the issue by relying solely on “adequate” as the basis for its regulation. Here, DOT attempts to argue that its invocation of 49 U.S.C. § 41702 is necessary to protect passenger comfort. However, DOT fails to provide any evidence that passengers are discomfited by the vapor produced by e-cigarettes.

DOT’s absurdly broad claim of authority under “safe and adequate” would logically lend itself to a ban on the consumption of alcohol aboard aircraft presently permitted within limitations under 14 C.F.R. § 121.575 due to drunken passenger behavior, an action Congress never intended and would, for obvious reasons, actively oppose.

Further, DOT never considers the countervailing comfort benefits of allowing e-cigarette use, such as alleviating nicotine withdrawal symptoms and reducing modal substitution by smokers to far more dangerous highways, where some number are injured or killed in auto accidents. (CEI has also filed a lawsuit against the Transportation Security Administration alleging it improperly failed to consider the deadly modal substitution effects of its invasive body scanner policy.)

Finally, on the third statute, “unfair and deceptive practices,” DOT failed to even provide notice in its 2011 proposed rule that it would rely on 49 U.S.C. § 41712. Further, the statute only applies to airline conduct, not customer conduct, as is the case with the use of e-cigarettes by passengers. In addition, as with the “safe and adequate statute,” DOT fails to show that e-cigarettes are harmful to bystanders, meaning the use of e-cigarettes by some passengers could not constitute “unfair” conduct with respect to non-using passengers who allegedly may be discomfited.

Some have questioned why CEI and CASAA decided to file this lawsuit. Is our goal to require airlines to permit e-cigarettes during their flights? Absolutely not, although we would not oppose an air carrier voluntarily allowing its customers to use e-cigarettes. As the airlines’ trade association noted in 2011 when they supported the DOT’s proposed rule to ban e-cigarette use, “all carriers already prohibit e-cigarette use in the cabin for the same reasons the Department provided.” We believe this is their right as property owners and should be respected.

Yet, that isn’t what this case is about. Rather, regardless of your opinion on the use of e-cigarette aboard aircraft, everyone should be concerned when a regulatory agency attempts to rewrite the laws of Congress to suit its aims. This is an illegal abuse of power and our goal is to preserve the rule of law against the whims of bureaucrats. As we have repeatedly stressed, DOT’s power grab is far more dangerous than the vapor produced by e-cigarettes.