Fight over airline e-cigarette ban focuses on ‘agency overreach’

Legal NewsLine discusses CEI's legal challenge to the Department of Transportation's ban of electronic cigarettes on airplanes with Marc Scribner.  

The Competitive Enterprise Institute (CEI) and the Consumer Advocates for Smoke-free Alternatives Association (CASAA) are continuing their fight against a final rule enacted by the U.S. Department of Transportation (DOT) that prohibits the use of electronic cigarettes on airplanes.

The groups have filed an opening brief in response to a petition for review of the rule that was filed in April.

In addition to CEI and CASAA, CEI employee and e-cigarette user Gordon Cummings also joined in the petition, which was filed in the U.S. Court of Appeals for the District of Columbia. CEI fellow Marc Scribner said CEI and CASAA raised opposition to the no-vapes rule when it was being drafted in 2011.

“We do view this as agency overreach and a rule-of-law issue,” Scribner told Legal Newsline. “They appear to be bending Congressional intent.”

In the opening brief filed on Aug. 8, the groups contend that the DOT does not have the authority to prohibit the use of e-cigarettes on airplanes.

By claiming that the use of e-cigarettes violates the requirement that airlines provide safe and adequate service, the plaintiffs said the DOT is acknowledging that the issue with e-cigarettes rests more on passenger comfort rather than potential health issues.

“These are very broad statutes,” Scribner said. “The DOT is basically using those as catch-alls.”

Scribner said the DOT uses unfair and deceptive practices just to expand its own power. He said it is not necessarily the only regulatory agency that overreaches its powers.

“I think we’ve seen in recent decades a political rise of the administrative state,” Scribner said. “I don’t think it’s unique to the DOT.”

Read the full article at Legal NewsLine.