Up In Not Smoking

A divided United States Court of Appeals for the District of Columbia Circuit upheld an interpretation of the airplane smoking ban prohibiting inflight use of electronic cigarettes. 

Underlying petitioners’ arguments and those of the dissent is the point that e-cigarettes did not exist in 1987 when Congress first made it unlawful “to smoke” on certain flights under two hours, nor did e-cigarettes exist in 2000 when Congress extended the prohibition. Although this means the legislators did not have e-cigarettes in mind when passing those statutes, that does not resolve the interpretive question. The text itself, rather than the subjective intentions of legislators, governs our review. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). We must ask whether the term “smoking” in a statute enacted before modern e-cigarettes existed covers these devices.

Petitioners maintain that “smoking” in § 41706 requires lighting or burning and does not encompass the heating that occurs with e-cigarettes. The statutory text alone offers no support for that position.

The majority delves into what “smoking” means

So here is where we are. Although the statute does not define “smoke,” some dictionary definitions, some state laws, and some characterizations of smoking by the e-cigarette industry itself support the Department. But other dictionary definitions and other state laws support petitioners. We therefore cannot say that Congress spoke to the precise question at issue.

The application of the ban was not arbitrary.

Circuit Judge Kavanaugh concurred

I join the majority opinion and add these brief comments. Even without affording Chevron deference to the Department’s interpretation of the statute, I would still reach the same result in this case. In my view, although it is a close call, the better interpretation of the term “smoking” in this statute covers ecigarettes as well as conventional tobacco cigarettes. Judge Ginsburg’s fine dissent rests in part on the notion that those who drafted or read the statute in 1987 would not have understood the term “smoking” to encompass e-cigarettes because e-cigarettes did not exist at that time. I am not convinced by that line of analysis, for reasons that the majority opinion persuasively explains.

Senior Circuit Judge Ginsberg in dissent

Today this Court departs from this principle to redefine “smoking” from conventional tobacco consumption, as it was commonly understood in 1987, to prohibit the use of electronic cigarettes, a new technology with a substantially different nicotine delivery process and likely different secondhand effects as well. Just as some people will, no doubt, “find ambiguity even in a ‘No Smoking’ sign,” Int’l Union v. Gen. Dynamics Land Sys. Div., 815 F.2d 1570, 1575 (D.C. Cir. 1987), the Court manufactures ambiguity from the lack of a statutory definition and some abstract dictionary definitions of “smoking” even though the Congress that adopted the statute and the public it represented would have found the term unambiguous when relating to passenger aviation…

I cannot accept the Court’s ahistorical reinterpretation of a purportedly ambiguous statutory term that was well-understood when enacted in 1987.

The challenge was brought by The Competitive Enterprise Institute, the Consumer Advocates for Smoke-Free Alternatives Association, and Gordon Cummings. (Mike Frisch)