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To protect airline passengers from secondhand exposure to e-cigarette aerosol, the final rule clarifies that the use of e-cigarettes on aircraft constitutes “smoking” within the meaning of the statutory ban on smoking on aircraft. The final rule is a reasonable exercise of the Secretary’s broad authority to prohibit “smoking” in aircraft, 49 U.S.C. § 41706, and to ensure “safe and adequate” service, which includes considerations of passenger comfort, id. § 41702.
The statutory prohibition on aircraft “smoking” includes a broad delegation of authority to the Secretary to “prescribe such regulations as are necessary to carry out” the prohibition. 49 U.S.C. § 41706(d). Congress did not define “smoking,” nor did it specify the types of smoking devices to which the statute applies, leaving a gap for the Secretary to fill. In the final rule, the Secretary reasonably filled this statutory gap by defining “smoking” to encompass both traditional tobacco products and modern smoking technologies, including e-cigarettes.
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As the Department explained in the final rule, secondhand exposure to e-cigarettes may be potentially harmful in the confined environment of an aircraft, particularly for high-risk passengers, and thus a “precautionary approach” is warranted.
By including the use of e-cigarettes in the definition of “smoking,” the final rule furthers the statutory purpose of the aircraft smoking prohibition to preserve cabin air quality, avoid passenger and crew discomfort, and reduce crewmembers’ exposure to “potential health hazards.”