Ban On Electronic Cigarette Use On Planes Finally Clarified

Effective April 1, 2016 (30 days after the Rule is final), the U.S. Department of Transportation (DOT) has finally expressly banned the use of electronic cigarettes on all commercial flights of U.S. and foreign carriers involving transportation in, to, and from the U.S. (Individual carrier rules listed below.)

I have written about this controversial topic in the past (GUIDE: Are You Allowed To Smoke E-Cigarettes On A Plane?), including two years ago when the FAA took the position that the use of ecigs during flights was already banned even though it previously did not expressly refer to “electronic cigarettes” or the like in the rule.

The new definition of “smoking” is:

Smoking means the use of a tobacco product, electronic cigarettes whether or not they are a tobacco product, or similar products that produce a smoke, mist, vapor, or aerosol, with 50 the exception of products (other than electronic cigarettes) which meet the definition of a medical device in section 201(h) of the Federal Food, Drug and Cosmetic Act, such as nebulizers.

The rule bans all vape products, including electronic cigarettes, cigars, pipes and devices designed to look like pens. Medical devices like nebulizers, however, are not included.

“This final rule is important because it protects airline passengers from unwanted exposure to electronic cigarette aerosol that occurs when electronic cigarettes are used onboard airplanes,” said Secretary Foxx. “The Department took a practical approach to eliminate any confusion between tobacco cigarettes and e-cigarettes by applying the same restrictions to both.”

The final rule, to be published in the Federal Register, clarifies that the Department’s airline smoking rule prohibits the use of electronic cigarettes and similar products in addition to the existing prohibition on the smoking of tobacco products.

The DOT’s position in the past was that the ban included the use of ecigs to vape, even though the user was not smoking:

Electronic cigarettes were introduced into the market in recent years. Because of the increasing promotion and availability of electronic cigarettes the issue has been raised as to whether the statutory ban on smoking in section 41706 and existing regulatory prohibition on the smoking of tobacco products in part 252 apply to electronic cigarettes. The Department views the statutory and regulatory ban on smoking to be sufficiently broad to include the use of electronic cigarettes. While we view the statutory ban on smoking in section 41706 to cover electronic cigarettes as the statutory authority for this NPRM, we are, nonetheless, not solely relying on section 41706, which prohibits smoking aboard aircraft, but also another statute, as was true when we amended Part 252 to implement section 41706. This statute, 49 U.S.C. 41702, mandates that an air carrier shall provide safe and adequate interstate air transportation.

The DOT took this action to eliminate any confusion over whether its ban includes electronic cigarettes. This amendment to Rule 252 (14 CFR 252) took almost 4.5 years to completion, as it was initially proposed on September 15, 2011.

The final rule is available at www.regulations.gov, docket number DOT-OST-2011-0044 or here.

Electronic Cigarette Policies for Selected Carriers
AirTran Airways – “In addition to smoking, the use of chewing tobacco and electronic cigarettes are not permitted onboard any scheduled or private charter AirTran Airways flight.”
Alaska Airlines –“Smoking, chewing tobacco, smokeless tobacco, and the use of electronic smoking devices are not permitted on any Alaska Airlines flight.”
American –“You can travel with electronic cigarettes in your carry-on baggage, but you are not allowed to use them onboard at any time.”
Delta – “E-cigarettes cannot be operated at any time on a Delta or Delta Connection Aircraft.”
JetBlue – “While the majority of electronic cigarettes may be non-hazardous, JetBlue does NOT allow the USE of them on any of our flights, but will allow them in checked or carry-on baggage. It is considered a nuisance item as small amounts of vapor are expelled from the cigarette.”
Southwest – “Electronic Cigarettes and Smoking Devices” are “never permitted” for use on board.
United – “The use of electronic, simulated smoking materials (such as electronic cigarettes, pipes or cigars) is prohibited on United Airlines.”
Air France – “Use of e-cigarettes is prohibited on all Air France flights. The vapor emitted by these devices may trigger the cabin smoke detectors.”
Air New Zealand – “The use and charging of electronic cigarettes (eCigarettes) is also not permitted as the vapour may contain levels of nicotine that are unacceptable to other passengers.”
British Airways – “We have a no smoking policy on board all our aircraft and in our airport lounges. This includes electronic cigarettes (e-cigarettes), as they emit a small amount of mist which can make it appear that a customer is actually smoking.”
KLM – “All KLM flights are non-smoking flights. Smoking is not permitted at any place or at any time on board our aircraft. This also applies to artificial cigarettes.”
Lufthansa – “Please note, however, that you are not permitted to smoke electronic cigarettes on board Lufthansa flights.”
Source: USDOT exhibit citing individual carrier websites.

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