CEI, the Consumer Advocates for Smoke-free Alternatives Association (CASAA), and former CEI employee Gordon Cummings today filed a lawsuit in April 2016 challenging a U.S. Department of Transportation (DOT) regulation that bans the use of electronic cigarettes on planes.

The lawsuit alleges DOT has no authority to issue such a ban and that the agency is illegally rewriting congressional law. In 1989, Congress authorized DOT to issue rules banning in-flight smoking. But, as DOT itself admitted when it first proposed to ban in-flight e-cigarette use, electronic cigarettes involve neither combustion nor smoke.

Until the final rule, issued in mid-February, airlines were free to voluntarily prohibit vaping aboard their aircraft, and most did. The airlines’ ban means that DOT’s rule is not only illegal but unnecessary.

On April 28, 2016, CEI filed its initial suit against the DOT before the United States Court of Appeals for the District of Columbia. On November 4, 2016, CEI filed its reply brief before the court. On April 10, 2017, the court heard oral argument in the case. Listen to the April 10 oral argument here.

On July 21, 2017, by a 2-to-1 majority, the appeals court said that DOT could ban e-cigarette use on planes under Congress’s 1987 no-smoking law for airlines. In a lengthy dissent, Judge Douglas H. Ginsburg stated that this was an unjustified distortion of the statute’s meaning.  Airlines already ban vaping on planes, but DOT nonetheless imposed its own regulatory ban as well, essentially freezing those airline policies in place.

Sam Kazman, CEI general counsel, made the following statement on today’s ruling:

“Today’s court ruling creates a dangerous new rule for interpreting the law. It allows the commonly-understood language of Congress’s 30-year old no-smoking statute to be stretched into a ban on e-cigarettes—even though e-cigarettes involve no combustion and produce no smoke. The detailed dissent by Judge Ginsburg on this point indicates the seriousness of this issue. The ruling also upholds a DOT ban that is regulatory showboating at its worst. That ban has no real effect, since airlines already ban vaping on their own. But DOT has been permitted to mangle the English language by stretching its statutory authority over smoking to encompass vaping. Vaping is an entirely different activity, and any risks to airline passengers are totally undemonstrated.

“One point that does stand out in the majority ruling is its criticism of the ‘Precautionary Principle’ as ‘literally paralyzing—forbidding inaction, stringent regulation, and everything in between’.”