If you were hoping to fire up that electronic cigarette on your next flight, you better think again: The use of e-cigarettes is still prohibited on commercial flights, an appeals court ruled Friday. 

A Washington, D.C. appeals court ruled [PDF] 2-1 to uphold the Department of Transportation’s 2016 rule banning the use of electronic cigarettes on all commercial and charter flights to, from, or within the United States.

The Ban

The DOT finalized rules that prohibit e-cigarette use on flights in March 2016. While the agency believed that its previous regulations banning smoking on flights were sufficiently broad to include e-cigarettes, it revised the rules to explicitly define “smoking.”

“The Department took this action to eliminate any confusion over whether its ban includes electronic cigarettes,” the agency said in a statement at the time.

The finalized rule treats electronic cigarettes, pipes, cigars, and other devices the same as tobacco cigarettes, which are also banned from use on U.S. flights.

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

Fighting The Ban

The DOT’s rule quickly came under fire, as the Competitive Enterprise Institute and the Consumer Advocates for Smoke-Free Alternatives filed a lawsuit challenging it, alleging that the agency had no authority to issue such a ban.

The organizations, along with an e-cigarette user, argued that the DOT improperly banned the use of e-cigarettes under a decades-old the anti-smoking statute because “e-cigarettes do not burn (or even contain) tobacco, much less produce smoke.”

In 1987, Congress declared it unlawful “to smoke” on scheduled passenger flights under two hours, and since 2000, the statutory smoking prohibition has extended to all scheduled passenger flights for travel within, to, and from the United States.

According to the suit, the DOT’s ban on e-cigarettes was a violation of the plain language in the statute, with the groups contending that e-cigarettes create a vapor, not smoke.

The Ruling

Today, United States Court of Appeals for the District of Columbia ruled against a lawsuit, upholding the DOT’s bank.

In a 2-1 ruling, the appeals court ruled that the term smoking, as defined by decades-old statutes, does indeed cover more modern electronic devices.

While the organizations argued that “smoking” requires lighting or burning and does not encompass the heating that occurs with e-cigarettes, the court found that statutory text does not support that position.

The judges found that nowhere in the state is “smoke” or “smoking” defined.

Judge Douglas Ginsberg disagreed with the majority ruling, noting that the other judges were taking a broad interpretation of the term “smoking,” noting that when the statue was created the term was unambiguous.

“I cannot accept the Court’s ahistorical reinterpretation of a purportedly ambiguous statutory term that was well-understood when enacted in 1987,” Ginsberg wrote in his dissent.

Not Over Yet

Sam Kazman, CEI general counsel, said in a statement Friday that the organization is considering whether to appeal the ruling.

“Today’s court ruling creates a dangerous new rule for interpreting the law. It allows the commonly-understood language of Congress’s 30-year old no-smoking statute to be stretched into a ban on e-cigarettes—even though e-cigarettes involve no combustion and produce no smoke,” Kazman said.

Consumerist has reached out to the Consumer Advocates for Smoke-Free Alternatives and the DOT for comment on the ruling. We’ll update this post if we hear back.

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