Vapes on a Plane: More on Why DOT’s Proposed In-Flight E-Cigarette Ban Is Fatally Flawed

Over at CNN.com, I have a piece arguing against the Department of Transportation’s (DOT) forthcoming rule aimed at outlawing “vapes on a plane.” I explain why the rule is both unjustified on risk-based grounds and an illegal implementation of the law written by Congress that outlaws tobacco smoking aboard aircraft.

Due to the limitations of the op-ed format, I wasn’t able to address a few items related to the airplane electronic cigarette rulemaking. Here are some additional thoughts:

First, DOT’s official timeline shifted earlier this week (inconveniently in Word .docx format). Instead of the end of April, the Department released its updated milestones in its February “Report on DOT Significant Rulemakings”:

The new estimated publication date is sometime by the end of June. It is fairly likely that this will be delayed again. The impact of this delay will likely be minimal. Currently, U.S. domestic airlines voluntarily prohibit their passenger from using e-cigarettes.

Second, the airlines support DOT’s proposed rule. As they wrote in comments to the DOT in 2011, “We agree that e-cigarettes should be banned from use in the cabin in the same manner that smoking is prohibited for U.S. and foreign carriers. In fact, all carriers already prohibit e-cigarette use in the cabin for the same reasons the Department provided.” The airlines are notorious for seeking government intervention when it either a) absolves them from blame in the eyes of consumers, and/or b) prohibits potential competition among carriers. The airlines that are voluntarily prohibiting their passengers from using e-cigarettes would much prefer the DOT to play Bad Cop—“Sorry, sir. I don’t write the federal regulations.”

On airlines supporting government intervention limiting potential competition, consider the “lap baby” example my colleague Sam Kazman highlighted 25 years ago. Parents have long been able to hold their infants and young toddlers in their laps, avoiding the purchase of an additional ticket. After a couple babies were killed in crashes 25 years ago, “public interest” physicians, business traveler groups, and airlines began supporting a prohibition on lap babies. But academic researchers and the Federal Aviation Administration’s in-house economists found that prohibiting lap babies, and thus increasing the cost of family air travel, would lead many parents to take to the far more dangerous roads, perversely leading to more child deaths. If the airlines’ fear of competing on child ticketing led them to support a policy that would result in more dead kids, it should not surprise anyone that they would support an anti-competitive policy that would merely codify their current internal practices and inconvenience nicotine addicts.

Finally, Congress amended the in-flight smoking statute as recently as 2012. This was after DOT had initiated the rulemaking proceeding to illegally rewrite its regulations to cover e-cigarettes. If Congress truly believed their smoking prohibition was fatally flawed in its lack of e-cigarette coverage, one wonders why they didn’t simply amend the plain language of the statute. This is another strike against DOT’s insistence that Congress granted it authority to prohibit e-cigarettes by way of its in-flight smoking law.