Does using an e-cigarette count as "smoking"? A federal appeals court is not sure, but either way, it can't be done on an airplane.
In a 2-1 opinion Friday, the U.S. Court of Appeals for the District of Columbia upheld a Transportation Department regulation barring the use of e-cigarettes on airplanes. The judges ruled that, because the definition of "smoking" is ambiguous, it's appropriate to defer to the agency's interpretation of the law under which it issued the regulation.
Judge Douglas Ginsburg dissented, writing that the law should be interpreted based on the meaning of "smoking" at the time it was passed in 1987, before the invention of e-cigarettes. The plaintiffs agree, and are considering an appeal to the U.S. Supreme Court.
"The statutory interpretation point on which Judge Ginsburg dissents might be the basis for a cert petition," said Sam Kazman, general counsel of nonprofit, libertarian-leaning Competitive Enterprise Institute, one of the plaintiffs on the case.
The ruling was the first of two losses for manufacturers and users of e-cigarettes Friday. The federal district court in D.C. also ruled for the FDA in a case challenging that agency's decision to regulate e-cigarettes the same way it does conventional cigarettes. E-cigarette advocates and a vaping company claimed the FDA exceeded its authority by deeming e-cigarettes as "tobacco products."
But U.S. District Judge Amy Berman Jackson was quick to assure users that her ruling would not ban the sale of the devices.
"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," Berman Jackson wrote. "That is not what the Deeming Rule does or what it was intended to accomplish. In the Deeming Rule, the FDA simply announced that electronic cigarettes, or electronic nicotine delivery systems ("ENDS") would be subject to the same set of rules and regulations that Congress had already put in place for conventional cigarettes."
Covington & Burling partner Ben Block and associates Robert Jacques and Kevin King represented the e-cigarette company in the case, Nicopure Labs. Eric Gotting and Azim Chowdhury, partners at Keller and Heckman, represented the advocacy groups.
The case against the Transportation Department was argued by Kazman of CEI along with senior attorney Hans Bader. Other plaintiffs included the Consumer Advocates for Smokefree Alternatives Association, and an individual, Gordon Cummings. Kazman and Bader represented all three.