My text was a little long (over the 2000 character limit), so I had to use an attachment.
[Your Comment Tracking Number: 80f65e36]
The use of personal vaporizers (PVs), commonly but inaccurately referred to as e-cigarettes, does not fall within the purview of existing federal law governing smoking on aircraft. 49 USC Section 41706, the law passed by Congress governing smoking on aircraft, states, "An individual may not smoke in an aircraft.” The DOT regulations implementing this law are in 14 CFR 252, the purpose of which states “This part implements a ban on smoking of
tobacco products…” Given the commonly accepted definition of smoking at the time of the law, the current version of 14 CFR 252 does not exceed what is authorized by law. The use of a PV does not involve or produce fire or smoke and is not the equivalent of smoking; rather it is on par with an inhaler. The intent of the law is to protect others from harm caused by smoking (i.e., combustion of)
tobacco products, which produces carcinogens.
The proposed rule states the basis, in part, is “the potential health and passenger comfort concerns.” Personal prejudices, unsubstantiated claims, or general ignorance do not present a valid basis to govern the behaviors of individuals or the enforcement of the law. There is zero evidence, medical, clinical (or substantiated anecdotal) evidence that use of a PV poses any risk to the user or anyone adjacent. Since the existing regulations are intended to protect the health and safety of the flying public, inclusion of PVs into the regulations has no merit. The use of a PV is no different than the use of nebulizers, or other inhalation based delivery mechanism used for medications. If there is no concern with passengers inhaling the secondary vapor from someone using a prescription medication, then there should be no concerns with use of PVs. Additionally, passenger comfort concerns, is not a federal responsibility. If it were, then there should be regulations governing the size of seats, the amount of cushioning, and other factors that comprise passenger comfort. As stated previously, personal prejudices (whether it be PVs, racial, religious, etc.) are not a valid basis for establishing regulations.
Unless and until DOT can cite harm or
threat to those with casual contact to e-cigarette vapor AND federal legislation is passed prohibiting the use of PVs on aircraft, the use of PVs on aircraft is not an issue legally within DOTs purview. Redefining the accepted definition of smoking and interpreting the law to support any non-health related agenda is not within the DOT’s authority, nor is expanding the coverage of the law. As a cabinet of the executive branch, the DOT is excluded from passing legislation by the separation of powers established by the Constitution of the United States of America. Redefining the coverage of 49 USC Section 41706 amounts to new legislation, which falls within the powers granted to the legislative branch (i.e., congress). Until such time as congress incorporates that change into law , any change that is attempted to be enforced is a violation of federal law and exceeds the limits of authority granted to the Executive Branch by the Constitution.
In conclusion, the passing of this ban presents moral (i.e., based on prejudices), ethical (i.e., selective consideration for passenger comfort), and legal (i.e., no supported by federal law) implications that are well beyond the authority and purview of the DOT.
