The PDF of the main argument (pp 1-74) is Here.
The PDFs of the “STATUTORY ADDENDUM” and “ADDENDUM ON STANDING” are too large to upload.
DOT improperly banned the use of e-cigarettes under the anti-smoking statute, 49 U.S.C. § 41706, because e-cigarettes do not burn (or even contain) tobacco, much less produce smoke. DOT’s reliance on the anti-smoking statute to ban e-cigarettes violates the plain language of the statute, conflicts with its concession that e-cigarettes produce “a vapor, not smoke,” and contradicts its past recognition that this statute imposes only “a ban on smoking of tobacco products.”
DOT acted arbitrarily and without proper notice in banning e-cigarettes under 49 U.S.C. § 41702, which requires air carriers “to provide safe and adequate service, equipment and facilities.” It did not give proper notice of the seven studies it relied upon in its final rule. None of those seven studies had been cited in DOT’s NPRM, and six were released after the close of the deadline for comment. Moreover, none of those studies show that e-cigarettes actually interfere with passenger comfort, or health and safety. Instead, they merely found trace amounts of certain chemicals in e-cigarette vapor, or on surfaces exposed to such vapor. Those chemicals are found in commonly-used products or foods permitted on flights, and could only cause harm at much higher doses. The levels found in e- cigarette vapor are trivial in comparison to pre-existing air cabin contaminant levels.
DOT did not respond to evaluate the studies submitted by commenters showing that e-cigarettes cause no harm. DOT also simply ignored petitioners’ arguments about the passenger comfort and health and safety benefits of allowing e-cigarettes, which reduces air rage, withdrawal symptoms, and road-related mortality. Moreover, DOT relied on speculation about putative harms, rather than addressing a demonstrated problem. And even if some passenger discomfort or health risk actually had been shown, DOT lacked the power to ban insignificant risks or impediments to passenger comfort – as precedent construing similar “safe” and “adequate” language in other statutes shows.
DOT also wrongly relied on the statute banning an “air carrier” from “engag[ing] in an unfair or deceptive practice . . . in air transportation,” 49 U.S.C. § 41712, to ban e-cigarettes. First, DOT never even mentioned it in the Notice of Proposed Rulemaking, providing no notice to the public that it might rely upon it. Moreover, this statute only applies to airline conduct, not passenger conduct like e- cigarette use, and it does not reach non-misleading activity such as e-cigarette use. Nor does it allow an agency to regulate based on speculative harms.
As an e-cigarette user who regularly travels by airplane, petitioner Gordon Cummings has standing to challenge DOT’s rule.