Courts Uphold E-Cigarette Rules for Planes & Marketing

WASHINGTON (CN) – Two courts in Washington struck blows to e-cigarette manufacturers on Friday, upholding one federal rule preventing the use of the devices on airplanes and another regulating how they can be marketed.

The first ruling, from the D.C. Circuit, upheld a Department of Transportation rule that went into effect in 2016 banning the use of electronic cigarettes on planes. The department justified the ban by pointing to a previous regulation that prohibited “smoking” on passenger flights, and another that says airlines must “provide safe and adequate interstate air transportation,” according to the ruling.

Free-market group the Competitive Enterprise Institute and consumer advocacy nonprofit the Consumer Advocates for Smoke-Free Alternatives Association asked the D.C. Circuit to review the rule, arguing that Congress could not have imagined e-cigarette technology when it first made it illegal to smoke on planes in 1987 and that the Department of Transportation therefore exceeded its authority in banning them.

Both the advocacy groups and the Transportation Department pointed to different definitions in different dictionaries to argue whether Congress could have considered e-cigarettes when banning smoking on planes, with the advocacy groups also pointing out that e-cigarettes produce vapor rather than smoke.

But D.C. Circuit Judge A. Raymond Randolph ultimately determined that smoking “can refer to a process where no smoke is produced,” and therefore struck down the idea that the Department of Transportation made an unreasonable determination when it banned e-cigarettes on planes.

“The Chevron-one analysis supports a reasonableness finding,” Randolph wrote, referring to the judicial doctrine that holds courts should generally defer to federal agencies when they are interpreting their own ambiguous regulation. “So does our 2010 decision concluding that the Food and Drug Administration can regulate e-cigarettes as ‘tobacco products’ because the liquid nicotine solution in e-cigarettes is derived from tobacco plants. A ‘smoking prohibition’ reasonably applies to products intended to enable users to inhale and exhale such nicotine.”

What’s more, Randolph found, is that the regulations would inconvenience very few people because airlines already ban the use of e-cigarettes even without the federal government. As a result, Kavanaugh wrote, only the people who would ignore the airlines’ rules would be prevented from using e-cigarettes, a small price to pay even if the evidence is conflicted on the harms of secondhand e-cigarette smoke.

Randolph’s colleague, Judge Douglas Ginsburg, disagreed, saying Randolph’s reasoning defies “an axiom of statutory interpretation” that requires judges to interpret words as Congress would have understood them at the time it wrote the law. Ginsburg said by Randolph’s logic, the government could ban hot coffee on airplanes because some dictionaries define smoke as “the action of heat on moisture” and smoking as “to emit… smoke.”

The same could be said for breath sprays, if the government looked at dictionaries like a 1989 version of the Oxford English Dictionary that described smoke as to “inhale (and expel again) the fumes,” Ginsburg wrote in his five-page dissent.

“Each interpretation would have been just as absurd in the 1980s as it is today, yet each follows from a creative use of dictionary definitions,” Ginsburg wrote. “Although prohibiting a wholly new product, e-cigarettes, may make more sense to modern passengers, the sentiment of today says nothing about whether the activity was ‘smoking’ in the 1980s, when e-cigarettes did not exist.”

The second ruling of the day came from the U.S. District Court for the District of Columbia, where Judge Amy Berman Jackson ruled the Food and Drug Administration can require e-cigarette manufacturers to tell the roughly 30 million people who “vape” what the liquids vaporized and inhaled through their devices actually contain.

The May 10, 2016, Food and Drug Administration regulation requires e-cigarette companies to have their products reviewed before marketing them, to truthfully describe their health benefits and to warn consumers of any dangers they pose.

Jackson’s 93-page ruling directly addressed e-cigarette users.

“The court wishes to reassure the many worried vapers who followed these proceedings closely that this case is not about banning the manufacture or sale of the devices,” Jackson wrote.

“The rule did not purport to take the choice to use e-cigarettes away from former smokers or other adult consumers; the issue is whether the FDA has the authority to require that the choice be an informed one,” Jackson added.

E-cigarette manufacturers will now be required to disclose to roughly 30 million vapers what the liquids vaporized and inhaled through the devices actually contain.

The ruling, Jackson noted, does not address whether e-cigarettes are safer than traditional ones.

Jackson found the Department of Health and Human Services has the authority under the Tobacco Control Act to regulate the vaping devices. The 2009 law left open the authority for the HHS secretary to regulate other tobacco products at their discretion.

“The agency unquestionably had the power to do so,” Jackson wrote. “Indeed, the plaintiffs who brought this lawsuit and submitted 235 pages of argument to the court do not challenge that general proposition even though they maintain that the agency should have taken a different approach to the task.”

Two separate Washington lawsuits filed by e-cigarette manufacturers and associations challenged the rule as arbitrary and capricious, and said the FDA had exceeded its authority because the devices and e-liquids don’t meet the statutory definition of a tobacco product.

More specifically, they took issue with regulation of open devices that are sold empty without e-liquid, arguing that the FDA can’t regulate nicotine-free e-liquids.

Jackson noted that any nicotine-free e-liquids that could be reasonably intended for use with nicotine-containing liquids are covered by the rule.

“The court concludes that the agency acted within the scope of its statutory authority: it was legally permitted to regulate that category of liquids, and to consider a refillable electronic nicotine delivery system to be a ‘component’ of a tobacco product and therefore subject to regulation,” Jackson wrote.


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