Technically speaking, the statement is true. No law prohibits using an e-cigarette on airplanes. The Department of Transportation solicited comments on a proposal to modify the the regulation "14 CFR Part 252" to specify that e-cigarette use is not permitted on aircraft. All Federal Regulations must be based on a law that authorizes the Agency to create regulations to enforce the law. In this case, the authorizing law is 49 USC 41706 which states, “An individual may not smoke in an aircraft.”
CASAA's comment pointed out that laws should be construed under their ordinary and plain meaning. Merriam-Webster defines smoke as “the gaseous products of burning carbonaceous materials made visible by the presence of small particles of carbon.” An e-cigarette produces no smoke and no combustion is involved in its operation.
The comments period has ended, and we have not heard anything further from the DOT. If however, DOT does issue a regulation that bans the use of e-cigarettes in the absence of any change in the authorizing law, it is very likely that the Agency will be sued by the Competitive Enterprise Institute, the organization that teamed with CASAA in writing a comment on the proposed change in regulations.
When an agency (part of the Executive Branch) issues regulations that go beyond the scope of the authorizing legislation, they are violating the Constitutional doctrine of "Separation of Powers." Only the legislature is authorized to make laws. The Executive Branch is responsible for enforcing the laws as written, and is not permitted to rewrite laws to suit its own agenda.
Any airlines, however, is free to make rules for behavior aboard its flights, and some airlines do have rules against e-cigarette use. If a passenger refuses to comply with the rule, they can be charged with the crime of failing to obey the instructions of flight personnel.
