The following comments were submitted.
Before the
Office of the Secretary
U.S. Department of Transportation
Washington, D.C.
In the matter of
Smoking of Electronic Cigarettes on Aircraft
Docket No. DOT-OST-2011-0044
Comments by
William T. Godshall, MPH
Executive Director
Smokefree Pennsylvania
1926 Monongahela Avenue
Pittsburgh, PA 15218
412-351-5880
smokefree@compuserve.com
These comments are in response to the Notice of Proposed Rulemaking (NPRM) published by the Office of the Secretary, DOT on September 15, 2011 entitled Smoking of Electronic Cigarettes on Aircraft (76 Fed. Reg. 57008) to amend the existing tobacco smoking ban to explicitly ban the use of smokefree electronic cigarettes (e-cigarettes) on all aircraft in scheduled passenger interstate, intrastate and foreign air transportation, and to extend existing rules prohibiting smoking on scheduled flights to charter flight operations by both U.S. and foreign carriers.
Upon careful review of the DOT’s proposed regulations, Smokefree Pennsylvania supports extending the existing smoking prohibition (on scheduled flights) to charter flight operations by both U.S. and foreign carriers because tobacco smoke pollution contaminates cabin air and poses health risks to humans.
In sharp contrast, however, Smokefree Pennsylvania strongly opposes the DOT’s proposal to ban the usage of smokefree e-cigarettes on scheduled flights or on charter flights for the following reasons.
1. The law banning smoking on scheduled flights, 49 USC § 41706, does NOT authorize
DOT to ban e-cigarette use since vapor is vastly different than tobacco smoke and since vaporization is vastly different than combustion.
2. DOT’s proposal falsely alleges that using an e-cigarette is the same as smoking.
3. The law requiring DOT to provide safe interstate air transportation, 49 USC § 41702, does NOT authorize DOT to ban e-cigarette usage because there is no evidence that e-cigarettes have ever harmed anyone, and there is no evidence that e-cigarettes pose any health or safety risks to users or nonusers.
4. DOTs proposal deceives the public to believe that e-cigarettes emit smoke and pose similar health risks to users and nonusers as does cigarette smoke.
5. DOT’s proposal grossly misrepresented the scientific and empirical evidence on e-cigarettes, and cherry picked misleading fearmongering quotes made by e-cigarette prohibitionists.
6. DOT's proposal to ban e-cigarette use on scheduled flights hypocritically would exempt virtually identical (but far more expensive) vaporizers marketed by drug companies.
7. DOT's proposal is unenforceable as e-cigarette consumers can use products discreetly with nobody anyone else knowing.
8. DOT's proposed penalties for violations are outrageously harsh and punitive.
For background, since 1990 Bill Godshall and Smokefree Pennsylvania have advocated local, state and federal policies to ban smoking in public indoor areas (including on airlines), ban tobacco marketing to youth, increase cigarette tax rates, fund tobacco education and smoking cessation services, and inform smokers that all smokefree tobacco/nicotine products are far less hazardous alternatives to cigarettes.
In 2007, Smokefree Pennsylvania encouraged Senator Mike Enzi to amend the FSPTCA to require picture warnings on cigarette packs, and in 2010 Smokefree Pennsylvania submitted an amicus curaie brief to the DC Court of Appeals in opposition to the FDA’s unlawful attempt to ban the import of e-cigarettes.
For disclosure, neither Smokefree Pennsylvania nor I have ever received any direct or indirect funding from any tobacco, drug or electronic cigarette company or trade association.
The following comments further delineate the previously cited reasons why the DOT should reject its proposed rule to ban e-cigarette use on scheduled flights and chartered flights.
1. The law banning smoking on scheduled flights, 49 USC § 41706, does NOT authorize
DOT to ban e-cigarette use since vapor is vastly different than tobacco smoke and since vaporization is vastly different than combustion.
49 USC § 41706 prohibited smoking on scheduled flights, but did NOT ban the use of smokefree tobacco products or other smokefree products. Therefore, DOT has no legal authority under 49 USC § 41706 to ban the use of e-cigarettes on scheduled flights.
2. DOT’s proposal falsely alleges that using an e-cigarette is the same as smoking.
Smoking is the process of burning tobacco products and inhaling the resulting smoke. But e-cigarettes aren’t burned, nor do they emit any smoke. Vaporization is a distinctly different process than combustion, as anyone who has taken a basic course in chemistry or physics should know. DOT’s false claim (that the use of e-cigarettes is smoking) is disingenuous and should be retracted.
3. The law requiring DOT to provide safe interstate air transportation, 49 USC § 41702, does NOT authorize DOT to ban e-cigarette usage because there is no evidence that e-cigarettes have ever harmed anyone, and there is no evidence that e-cigarettes pose any health or safety risks to users or nonusers.
There is no scientific or empirical evidence indicating that e-cigarettes have ever harmed anyone, and no laboratory report (including the FDA’s laboratory report) or published study has found any hazardous levels of any constituents in e-cigarettes.
The fundamental tenet of toxicology is “the dose makes the poison”. Although trace levels of various chemicals have been found in e-cigarettes (just as they are found in many other products that are on airlines), all published studies and all laboratory reports, including the ones at the following weblinks, have evaluated the contents of e-cigarettes have found that all constituents are present at nonhazardous levels.
http://www.healthnz.co.nz/RuyanCartridgeReport30-Oct-08.pdf
http://www.healthnz.co.nz/DublinEcigBenchtopHandout.pdf
http://www.casaa.org/files/Study_TSNAs_in_NJOY_Vapor.pdf
Lab Reports / E Liquid Facts / E Cigarette and E Liquid from Totally Wicked
http://cdn.johnsoncreeksmokejuice.com/downloads/JCE_GCMS_Report.pdf
http://www.libertystix.com/LibertyStixLabAnalysis072309.pdf
http://truthaboutecigs.com/science/8.pdf
http://www.fda.gov/downloads/Drugs/ScienceResearch/UCM173250.pdf
http://www.casaa.org/files/Exponent Response-to-the-FDA-Summary.pdf
http://www.hsph.harvard.edu/centers-institutes/population-development/files/article.jphp.pdf
Taylor & Francis Online :: ANALYSIS OF ELECTRONIC CIGARETTE CARTRIDGES, REFILL SOLUTIONS, AND SMOKE FOR NICOTINE AND NICOTINE RELATED IMPURITIES - Journal of Liquid Chromatography & Related Technologies - Volume 34, Issue 14
SEIKATSUEISEI : Vol. 55 (2011) , No. 1 p.59-64
A Literature Review for Glycerol and Glycols for Entertainment Services & Technology Association also found no health risks to humans
http://tsp.plasa.org/tsp/working_groups/FS/docs/HSE.pdf, while new pharmacology, pharmacokinetic and toxicology studies at
ScienceDirect - Toxicology : Non-clinical safety and pharmacokinetic evaluations of propylene glycol aerosol in Sprague-Dawley rats and Beagle dogs found that laboratory animals were not harmed by very high levels of propylene glycol aerosol.
Since 49 USC § 41702 requires DOT to provide safe interstate air transportation, and since e-cigarettes pose no known health or safety risks to airline passengers or flight crews, nothing in 49 USC § 41702 authorizes the DOT ban e-cigarette usage.
4. DOTs proposal deceives the public to believe that e-cigarettes emit smoke and pose similar health risks to users and nonusers as does cigarette smoke.
None of the studies (nor lab report) cited by DOT found any hazardous levels of any constituents in e-cigarettes. Unfortunately, the DOT and the authors of those articles (and lab report) failed to acknowledge those critically important facts, and instead those authors and DOT have attempted to deceive and scare the public to believe that e-cigarettes are hazardous.
Not only is there no evidence that e-cigarettes pose health risks, but the following weblinks contain published studies that confirm e-cigarettes satisfy the cravings of smokers, help many smokers quit and/or sharply reduce cigarette consumption, and provide perceived health benefits to users who switched from cigarettes.
http://ntr.oxfordjournals.org/content/early/2011/05/12/ntr.ntr088.full.pdf+html
http://www.biomedcentral.com/content/pdf/1471-2458-10-231.pdf
THR2010. (tobaccoharmreduction.org) (see chapter 9)
http://ectoh.org/documents/3B.5 Ett...ation satisfaction and perceived efficacy.pdf
http://www.ajpmonline.org/webfiles/images/journals/AMEPRE/AMEPRE3013.pdf
Electronic cigarettes (e-cigs): views of af... [Int J Clin Pract. 2011] - PubMed - NCBI
Electronic Cigarettes
http://www.biomedcentral.com/content/pdf/1471-2458-11-786.pdf
5. DOT’s proposal grossly misrepresented the scientific and empirical evidence on e-cigarettes, and cherry picked misleading fearmongering quotes made by e-cigarette prohibitionists.
Once again, none of the studies (nor lab report) cited by DOT found any hazardous levels of any constituents in e-cigarettes. Unfortunately, the DOT and the authors of those articles (and lab report) failed to acknowledge those critically important facts, and instead those authors and DOT have attempted to deceive and scare the public to believe that e-cigarettes are hazardous.
Not only has DOT’s proposed regulation (to ban e-cigarette use on scheduled flights) already deceived many people to inaccurately believe that e-cigarettes are hazardous to users and nonusers, but DOT’s approval of its proposed regulation would further deceive the public to believe that e-cigarettes are hazardous to users and nonusers.
Other public health organizations that have extensively studied e-cigarettes have also endorsed their use by smokers, including The American Association of Public Health Physicians
Regulations.gov and the American Council on Science and Health
NEJM editorial: e-cigarette users should resume smoking for their own good > Facts & Fears > ACSH.
John Tierney’s article in the Science Section of the November 8 New York Times
“E-cigarettes help smokers quit, but they have some unlikely critics”
http://www.nytimes.com/2011/11/08/s...e-some-unlikely-critics.html?_r=1&ref=science
evaluated the scientific evidence about e-cigarettes, and found nothing hazardous except the inaccurate and misleading claims by e-cigarette prohibitionists.
6. DOT's proposal to ban e-cigarette use on scheduled flights hypocritically would exempt virtually identical (but far more expensive) vaporizers marketed by drug companies.
Although the DOT proposal would ban the use of nicotine inhalers that are called e-cigarettes, the DOT proposal hypocritically exempts nearly identical nicotine inhalers that are marketed by drug companies.
Many of those that urged the FDA to ban the sale of e-cigarettes (e.g. Senator Frank Lautenberg, Campaign for Tobacco Free Kids, American Cancer Society, American Lung Association) have received hundreds of thousands or millions of dollars from drug companies that market smoking cessation products and that would financially benefit if e-the sale and/or usage of e-cigarettes is prohibited or restricted.
The DOT should not be banning the use of certain nicotine inhaler product based solely upon which company(ies) manufacture or market the product.
7. DOT's proposal is unenforceable as e-cigarette consumers can use products discreetly with nobody anyone else knowing.
Since e-cigarettes emit no visible vapor, since some e-cigarette products can be altered to prevent visible vapor, and since e-cigarette consumers eliminate any and all visible vapor by simply holding their breath for two seconds following inhalation, it can be impossible for the DOT, flight attendants or passengers sitting immediately beside an e-cigarette user to tell if the person is using an e-cigarette or not.
And since some e-cigarettes have no LED light, since LED lights on some e-cigarette models can be dismantled, and since LED lights on e-cigarettes can be easily hidden by a person’s hand, it can be impossible for the DOT, flight attendants or passengers sitting immediately beside an e-cigarette user to tell if the person is using an e-cigarette or not.
In sharp contrast to the existing smoking bans at most indoor workplaces and on scheduled flights (which is primarily self enforced because smoking is easily detectable by others), enforcing an e-cigarette usage ban is impossible if e-cigarette users don’t want others to know about their usage. This is why there have been no citations (or even warnings) issued for violating indoor e-cigarette usage bans in New Jersey, Seattle or other jurisdictions where those those laws or regulations have been enacted, despite many e-cigarette consumers continue to use the products in those prohibited locations.
Simply put, it is impossible for anyone at DOT, any flight attendant, or any airline passenger to tell if another airline passenger is using an e-cigarette if that user doesn’t want them to know.
Besides, since e-cigarettes leave no evidence of usage (as it vaporizes), attempts to enforce and/or prosecute alleged violations of the proposed DOT e-cigarette usage ban will cause far more discomfort and confusion for DOT, flight attendants and passengers than any current discomfort or confusion that may be caused by someone not knowing what an e-cigarette is.
If the DOT truly believes that current usage of e-cigarettes on scheduled flights may cause discomfort or confusion, as Ray LaHood claimed in the DOT’s misleading press release at
Press Release | U.S. Department of Transportation, this can be simply resolved by informing any discomforted or confused passengers that there is no evidence e-cigarette use poses any health risks, and that the products emit no tobacco smoke. The only people who are confused about e-cigarettes are those who have never seen them before, and a short response can quickly resolve any confusion.
8. DOT's proposed penalties for violations are outrageously harsh and punitive.
Violators of the DOT’s proposed e-cigarette usage ban on scheduled flights could face a $3,300 fine, which is outrageously excessive, and may violate the 8th Amendment to the U.S. Constitution because it is cruel and unusual punishment (for doing something that poses no known risks to anyone).
In sum, the DOT’s proposed regulation to ban e-cigarette usage on scheduled flights is illegal, unwarranted, deceitful, excessive, unenforceable and mean spirited, and should be rejected by the DOT.
Furthermore, a February 2, 2011 AP article by Michael Felberbaum at
http://finance.yahoo.com/news/Use-of-ecigs-not-allowed-on-apf-4166805605.html?x=0
claimed that DOT Secreteray Ray LaHood sent a letter to Sen. Frank Lautenberg that falsely claimed the existing DOT airplane smoking ban regulations prohibited e-cigarette usage, and that DOT had already been informing the airlines and the public of that so-called fact.
But in fact, the DOT regulation that bans smoking in scheduled flights (14 CFR Part 252) at
PART 252—SMOKING ABOARD AIRCRAFT :: PART 252--SMOKING ABOARD AIRCRAFT :: CHAPTER II--OFFICE OF THE SECRETARY, DEPARTMENT OF TRANSPORTATION (AVIATION PROCEEDINGS) :: Title 14 - Aeronautics and Space :: Code of Federal Regulations :: Regulations didn’t ban e-cigarette usage. The DOT has a duty to be honest and fair instead of making false claims about e-cigarettes and promulgating illegal and irresponsible regulations.
Once again, the DOT should reject its proposed ban on e-cigarette use on scheduled flights, but should approve its proposal to extend the smoking ban to chartered flights.
