The U.S. Department of Transportation (“DOT”) promulgated a regulation in May 2016 prohibiting passengers from packing e-cigarettes in stowed luggage or using them on airline flights.  As a result, two non-profit organizations, the Competitive Enterprise Institute (“CEI”) and the Consumer Advocates for Smoke-free Alternatives Association (“CASAA”) filed a lawsuit against DOT alleging that DOT exceeded its authority when it promulgated the regulation.  (Competitive Enterprise Institute, The Consumer Advocates for Smoke-Free Alternatives Association, and Gordon Cummings v. United States Department of Transportation, and Anthony Foxx, in his official capacity as Secretary of the U.S. Department of Transportation, Case No 16-1128, In the United States Court of Appeals for the District of Columbia Circuit.)

CEI and CASAA believe that the airlines have the right to prohibit the use of e-cigarettes, but that DOT does not.  Rather they say that DOT impermissibly banned the use of e-cigarettes on aircraft through regulation. Their case is limited to a review of the agency authority to pass this particular regulation.

The case is in the United States Court of Appeals for the District of Columbia Circuit seeking review of the DOT restrictions on e-cigarette use on commercial passenger planes, including charter flights requiring a flight attendant.  The Petitioners, CEI and CASAA, seeking to set aside the regulation, have requested that the DC Circuit rule that the agency acted in an arbitrary and capricious manner, in violation of the law when it adopted the regulation.

Comments to the rule suggest that the agency has defined smoking to include vaping.  The agency acknowledged more comments were received opposed to the ban and raising the same issues as are proffered in the litigation, in contrast to fewer comments received by DOT from those supporting the ban.  DOT cites its belief that a uniform regulation should be applied rather than to rely on the industry to adopt its own practices.

For questions and/or comments, please contact Bryan Haynes, at 804.697.1420 or by email.