Use of Electronic Cigarettes on Aircraft

The Department of Transportation (DOT) rule bans the use of electronic cigarettes on flights by attempting to rewrite its regulatory authority while purporting to “interpret” the statute. While the DOT has the authority to prohibit smoking on airplanes, e-cigarettes do not fall under that authority because they neither emit smoke nor involve combustion. Whatever one’s views are on e-cigarette use (vaping) on airplanes, the regulation is an abuse of power because it is contradicted by the plain meaning of the statute. Congress gave DOT authority to ban smoking on airplanes in order to combat secondhand smoke, not air vapor. The regulation is not only illegal, it’s also unnecessary. E-cigarette use was already banned by the major airlines. Only charter flights permitted e-cigarettes, who are forbidden from allowing vaping going forward. This reduces consumer choice and protects major airlines from competition by imposing costs on charter airlines.

DOT acknowledges there is no scientific consensus on the health effects of e-cigarette vapors. DOT regards its authority to define smoking as plenary; by assuming that e-cigarettes are included in the smoking ban, DOT can then argue it should apply a precautionary principle, i.e., that e-cigarettes must be proven conclusively safe before granting an exception to the rule. This turns administrative law principles on their head by excusing the agency from justifying its regulation.