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 in 2011.
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 airplanes.
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 uncomfortable.
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.