Lawsuit Against DOT Ban on E-Cigs in Airplanes Takes Flight

Published June 6, 2016

Lawyers representing the Competitive Enterprise Institute (CEI), a nonprofit public policy think tank, and the Consumer Advocates for Smoke-free Alternatives Association (CASAA), a nonprofit organization educating people about tobacco-harm-reduction alternatives, are suing the U.S. Department of Transportation (DOT) over a May 2016 regulation prohibiting passengers from packing e-cigarettes in luggage or using them on airline flights.

The lawsuit, filed in May in the U.S. Court of Appeals for the District of Columbia Circuit, says the federal regulatory agency, whose stated goal is serving “the United States by ensuring a fast, safe, efficient, accessible and convenient transportation system,” exceeded its authority granted by lawmakers when it used tobacco regulations to ban non-tobacco products.

Not a ‘Grand Challenge’

CASAA Executive Director Julie Woessner says the lawsuit is about a government agency exceeding its authority.

“I think people are seeing this as some grand challenge to e-cigarette use on planes,” Woessner said. “What this is really is a very narrow challenge to the DOT exceeding the scope of their authority. Agencies only have the authority that Congress grants them. Congress grants the DOT the authority to ban smoking on airlines, and DOT did not have the authority to ban vaping.”

Conflating with Combustion

Woessner says e-cigarettes are significantly different from tobacco cigarettes and should be treated differently.

“I think people like to conflate vaping and smoking, but they are two very different things,” Woessner said. “Smoking involves lighting something on fire and then inhaling the products of combustion, whereas vaping does not involve combustion.

“In any event, our position—and we’ve been maintaining this position since 2011—is that DOT simply does not have the authority to issue this ban,” Woessner said.

Beyond E-Cigarettes

Mark Scribner, a transportation policy research fellow with CEI, says the lawsuit is not about trying to force airlines to allow e-cigarette use on airliners.

“I think one thing that has been missed by a lot of people in this case is this isn’t about us trying to allow e-cigarette use on aircraft,” Scribner said. “We think that the airlines, if they so choose, should be able to continue banning e-cigarette use on their aircraft. That should be up to them.

“Fundamentally, this is about the agency stretching the language of the statute in a way that is impermissible in order to ban the use of e-cigarettes on aircraft through regulation,” Scribner said. 

Andrea Dillon ([email protected]) writes from Holly Springs, North Carolina.

Internet Info:

U.S. Court of Appeals for the District of Columbia Circuit, Competitive Enterprise Institute, et al. v. DOT, et al., April 28, 2016: