The regulation on E-cigarettes is from the Department of Transportation.
This regulation is very interesting for me because I grew up around mostly cigarette smokers. My mother used to smoke, my father, my grandparents, my sisters and brothers. In the country that I came from, smoking is one of the cheapest vices. When you go out of your house you will never miss a person smoking. I chose this regulation because I am basically concerned about the air we breathe especially if we are a non-smoker. I have been on few flights myself and I have never encountered somebody smoking e-cigarettes myself. But, since this new technology is growing and although it has claimed to reduce the risk of real cigarette-smoking, we are still unaware of the negative impacts it may bring to the air quality within the aircraft, and the impact it brings to the high-risk passengers aboard the aircraft.
This regulation may not affect the organization I am working for but it definitely affects me as an individual. I work in a bank as a teller and thrice this year I have been a passenger of a plane which is preferable to me than driving 6 hours. I love flying and I would definitely enjoy it more with clean atmosphere and without the disturbance of a passenger sitting beside me inhaling and exhaling vapors. But of course this is not only about me, but of the population that is aboard the aircraft. A plane may consist of elderly people and babies that may be of higher risks than most of us. Some may have special conditions and some maybe just as annoyed as others. This technology, I believe is very young and we still have a lot of things to learn about it. If this will be proven safe and would absolutely pose no harm to anybody within the aircraft, then we could still fight to amend this prohibition.
2. Describe the Proposal/Change.
The Department of Transportation is proposing to amend its existing “Airline Smoking Rule” to explicitly ban the use of Electronic Cigarettes on all aircraft in scheduled passenger interstate, intrastate and foreign air transportation.
The Department is taking this action because of the increased promotion of electronic cigarettes and the potential health and passenger comfort concerns that they pose in an aircraft.
The Department is also considering whether to extend the ban on smoking (including e-cigarettes) to charter flights of air carriers (i.e. US Carriers) and foreign air carriers with aircraft that have a designed seating capacity of 19 or more passenger seats.
3. “How do you ban a product from a plane when it does not do anything?” – Ray Story – Chief Executive of the Tobacco Vapor Electronic Cigarettes Association.
Despite allegations that the electronic cigarettes are safer because they do not contain carcinogenic substances; warning labels on their products are present, as they still contain a very tiny amount of nicotine. However, it’s absolutely harmless and safe for anyone using it.
Other studies on electronic cigarettes are necessary, if any levels of chemicals detected in electronic cigarettes may cause serious health problems. Electronic cigarettes are considered “safe” than the traditional snuff, and has less toxicity level comparable to that of nicotine replacement. Electric cigarettes reviews say that carcinogens in e-cigarettes were 1,000 times lower than conventional cigarettes.
Small sized electronic components are included in the e-cigarette. Three parts compose the body. These include nicotine cartridge, an atomization chamber, a smart chip controlled by a small battery. Every time you inhale the E-cigarette, you will find a small indicator on the front of your electronic cigarette and this varies from one model to another, but most of them have some type of light. This red light gives you the same sensation that happens at the end of a traditional cigarette while breathing, but no ash is created here. It is a liquid solution of nicotine to the atomizer, which heated up as steam, and it does not have that nasty smell of real smoke. You will have the dose of nicotine that smokers seek, and smoke like appearance, but without smoking a real cigarette.
Nevertheless, there are still a lot of people out there who wants to board a plane and inhale fresher air than the e-cigarette vapors. More studies must be conducted regarding this technology and once it has been proven that E-cigarettes pose no harm on individuals at all and 100% safe to even babies, then this Regulation must be reviewed.
4. Deadline: Dates: Comments should be filed by November 14, 2011. Late-filed comments will be considered to the extent possible. Addresses: You may file comments identified by the docket number DOT-OST-2011-0044 by any of the following methods: Federal eRulemaking Portal: go to http://www.regulations.gov and follow the online instructions for submitting comments. 5. a. Once I have submitted my comment regarding this regulation on E-cigarettes and smoking in charter flights of air carriers, I will obtain free copies of comments up to 50 pages for my personal reference. I would like to study and read how other people think about this regulation. If I am not able to obtain a free copy, I will send FDA an FOIA request and have copies of the comments mailed to my address.
I know that besides accepting public comments and petitions, FDA also schedules public meetings and hearings to discuss and explain its proposals. With an advance notice, I will send an intention to attend this public hearing in order to educate myself more regarding this regulation. I am supporting this regulation but I believe that hearing the other side’s story will enhance my knowledge about this and will clearly give me understanding of both sides. I will frequently check on the Federal Register on announcement of meetings. There may be a meeting that is close to me other than in Washington DC.
b. Legal challenges are among the tactics used by the tobacco industry to oppose tobacco control ordinances. Although there are now more than 1600 local clean indoor air ordinances, successful legal challenges to these ordinances are extremely rare and the ordinances almost always upheld by the courts.
Typically, when an ordinance is under consideration, a tobacco industry ally (e.g. airline, retailer or advertising association) or front group will threaten a lawsuit in order to intimidate officials into a “no” vote for fear of incurring large expenses in defending the law.
Once a regulation is enacted, opponents will typically file a lawsuit, and seek a temporary restraining order or an injunction to prevent implementation of the regulation during the course of the lawsuit, which could last for months or even years. These suits can be filed on the basis of multiple legal theories, allowing judges to pick and choose the best arguments for overturning this regulation.
There are several different reasons for filing lawsuits, but the most common one is delay. Opponents know that once a regulation is implemented, it is supported by the community, making repeal almost impossible. Restraining orders and injunctions buy the tobacco industry time. During the time that a regulation is suspended, opponents will do several things, including gathering signatures for a repeal, garnering support for the weakening of regulation language, and scaring the policymakers into repealing the law themselves.
Lawsuits challenging a regulation are filed in the hopes that a sympathetic judge will overturn it. While this is rare, it has happened, and tobacco advocates are always working to create more successful legal arguments.
Finally, lawsuits are files as a means of scaring neighboring communities away from passing their own regulations. The opposition may seek to bring the lawsuit as a hook for earned media and to convey a sense of controversy to other cities or countries.
Most legal challenges will include multiple points, so here are the challenges that we need to be familiar with:
Equal Protection Challenges
Some opponents have argued that laws restricting smoking violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, and that such laws discriminate against smokers. The Equal Protection Clause requires the equal application of laws. A common misperception is that it requires everyone to be treated equally, but in actuality, it only requires that a law be applied equally to those it affects. There are three standards for review when evaluating the constitutionality of a law challenged under the Equal Protection Clause, but only one is applicable to clean indoor air regulations. Such a regulation need only be examined for reasonableness, under what’s called the “rational relationship” test. As long as there is rational relationship between the regulation and a legitimate government interest, then the regulation is not discriminatory. Since smoking is not a fundamental constitutional right, this is the appropriate standard.
Because there must be a rational relationship between the clean indoor air regulation and the legitimate interest of protecting health, it is very important that a clean indoor (such as an aircraft with a 19-seated design) regulation provide adequate steps to achieve its purpose of protecting nonsmokers from secondhand smoke (also referring to e-cigarette secondhand smoke).
Due Process Challenge
There are two types of due process challenges – procedural and substantive, both of which are based on the Due Process Clause of the 14th Amendment to the U.S. Constitution.
The intent of procedural due process is to ensure that the government acts in a way that is fair and reasonable when making decisions that affect private individuals, and that in not engage in arbitrary action. If the procedure is fair and reasonable, and if there is adequate notice and a fair hearing, there has been procedural due process.
Procedural due process challenges are usually focused on procedural errors in the passage of a regulation. In 2001, SouthCoast Citizens for Freedom, a group of restaurant and bar owners in Massachusetts, files suit against the New Bedford Board of Health for violating the state’s open meeting law when they passed a comprehensive clean indoor air ordinance (SouthCoast Citizens for Freedom v. New Bedford Board of Health, 2001) . While in this case the Board of Health started the process over and again passed the regulation, merely filing the suit caused unnecessary delay and confusion. Suits also involve claims of overbreadth and vagueness, as is the case in a suit recently filed by the New York – based Dutchess/Putnam County Restaurant and Tavern Owner’s Association.
Substantive due process, on the other hand, is intended to protect the public from arbitrary governmental action, regardless of the procedures used to implement it. Substantive due process is very similar to equal protection – they both use the “rational relation” test for rights that are not fundamental. For that matter, most bases based on discriminatory practice are now brought under the equal protection clause, but it is good to be aware that due process claims still exist (mostly involving claims of government intrusion into a private right). Also, many times opponents will bring suit claiming violations of both equal protection and due process.
Regulatory Authority
Some local smoking restrictions have been enacted by regulatory agencies other than elected city councils. Local health departments or boards of health are the most common agencies outside of city councils to adopt smoking restrictions. Their authority to restrict smoking has been legally challenged by some jurisdictions. Although regulations adopted by health departments or boards of health in Massachusetts and West Virginia have been upheld, the authority of health departments or boards of health to adopt these regulations varies from state to state. Regulations adopted by these agencies must be even more careful than city ordinances to ensure that any exemptions relate to health considerations rather than other concerns.
In August, 2002, the Ohio Supreme Court ruled that a health board in Lucas County lacked the authorization to enact a nonsmoking regulation, because it had no legislative authority to do so. Not only did the Court hold that the Ohio General Assembly had not indicated intent to vest local boards of health with authority to adopt regulations addressing all public health concerns, but they held that administrative regulations cannot dictate public policy. The Court stated that boards of health can only develop and administer policy already established by the General Assembly (D.A.B.E. et al, v. Toledo-Lucas County Board of Health, 2002).
Also in 2002, a circuit court in West Virginia held that, although the Cabell-Huntington Board of Health could impose civil penalties for violation of its clean indoor air regulation, they had no authority to impose criminal penalties, as the regulation called for. However, the case is being decided by the West Virginia Supreme Court (Foundation for Independent Living, Inc., et al., v. Cabell-Huntington Board of Health, 2002)
In a 1987 New York case, a smoking restriction which exempted conventions was struck down on the grounds that only the legislature, not a public health council, could decide factors based on economic considerations (Boreali v. Axelrod, 1987).
Boards of health and health departments are not the only regulatory authorities that have been tested in court. In 2011, the Village Council of Friendship Heights, Maryland, a special taxing district, repealed what was the toughest regulation in the country because a Circuit Court judge temporarily blocked its enactment. He ruled that the village had no authority to exercise powers reserved for municipalities.
Preemption Challenges
Preemption is a provision in state (or federal) law that eliminates the power of local (or state and local) governments to regulate tobacco; it is a serious threat to effective tobacco control. Some states have passed weak clean indoor air laws that explicitly forbid local communities from passing their own regulations. Other states have passed clean indoor air laws but stay silent on whether communities have the right to pass local clean indoor air laws. This is “implied” preemption. In these states, tobacco industry allies have challenged local smoking control laws by charging that municipalities are preempted by state law from enacting their own clean indoor air laws, claiming that state law “occupies the field” of regulation. This also applies to e-cigarettes which has been declared by FDA as a tobacco product.
Takings Challenges
The Takings Clause is found in the 5th Amendment of the U.S. constitution. It provides that a private property may not be taken for public use without just compensation. The U.S. Supreme Court held in 1992 that property was to be compensated only if a regulation rendered the property completely valueless. In addition, the opinion state that even if property is rendered valueless, if the regulation prohibits something that was not “previously permissible under relevant property and nuisance principles”, then there can be no taking (Lucas v. South Carolina Coastal Council, 1992).
The “takings” argument, with respect to clean indoor air laws, is based on the myth that businesses lose money due to a clean indoor air law. Opponents may state that the value of their business permits will decline and, therefore, the government is taking property without compensation. However, all reputable studies clearly show that clean indoor air laws either result in no change in revenue or cause revenues to increase. Only the studies finance by the tobacco industry have shown a loss.
In 2001, the Supreme Judicial Court of Massachusetts ruled that “economic harm alone will not suffice as irreparable harm unless the loss threatens the very existence of the movant’s business,” (“Tri-Nel Management, Inc., et al. v. Board of Health of Barnstable, et al., 2001).
In 2002, a court in Montana threw out all claims except the one based on takings in the pending case regarding Helena’s smokefree air ordinance.
Lawsuits are a very common tactic used by the industry to either delay or overturn clean indoor air ordinances specifically on public planes. However, with a carefully worded regulation such as this one, there suits are almost always defeated.
c. The one challenge which could possibly overturn this regulation is Delay. Suspending the implementation of the e-cigarette ban in aircrafts regulation will allow the opponents to conduct more research to prove that the e-cigarettes are safe for humans and the environment. Although it may cost them a lot of money to do so, if I am challenging this regulation, I would gather enough information to prove that e-cigarette is safe and will educate more people of its healthful benefits. Throughout the delay, if it may take longer, conducting studies and gathering signatures and certifications from scientists and other health agencies may allow me time to overturn this regulation.
