WASHINGTON (Legal Newsline) – 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
CEI and CASAA said they are not asking the DOT to require
all airlines to allow the use of e-cigarettes on planes. Instead, the
groups said their core issue with the DOT’s ban on the use is that the rule
constitutes an attempt by a regulatory agency to change laws enacted by
Congress to meet its own needs.
“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
CEI said the DOT claims it can ban the use based on statutes
that prohibit smoking on passenger flights, require air carriers to provide
safe and adequate air transportation and prohibit air carriers from engaging in
unfair or deceptive practices and unfair methods of competition.
Their brief argues that the no-smoking rule
actually applies to using combustible tobacco products that produce smoke,
which does not apply to e-cigarettes.
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.
The plaintiffs said the DOT has not provided
evidence to prove that the use of e-cigarettes makes a user’s fellow passengers
In connection with the DOT’s claim that e-cigarette use
would violate the unfair and deceptive practices statute, the plaintiffs said
that statute was not written to cover passenger conduct, only unfair or
deceptive conduct of the airlines themselves.
Since the DOT has not proven that
e-cigarettes are harmful to others, the plaintiffs said it cannot claim that the
use of e-cigarettes is unfair to airline passengers.
“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.”
Congress allowed the DOT to ban smoking during flights in
1989. The rule prohibiting the use of e-cigarettes was issued in February.