No E-Smoking on Commercial Airlines, Either

DOT cites health concerns, not safety issues, in its proposed ban on using electronic cigarettes on all scheduled passenger aircraft. It may extend the ban to charter flights of U.S. carriers and foreign carrier aircraft that seat 19 passengers or more.

Passengers soon may be prohibited from using electronic cigarettes on all scheduled U.S. passenger aircraft, now that the U.S. Department of Transportation has proposed a ban. DOT published its NPRM on Sept. 15 and asked for comments by Nov. 14, but the proposed rule says the department believes its current ban on smoking any tobacco product on a commercial flight already covers the use of e-cigarettes. The NRPM was proposed "to explicitly ban the use of electronic cigarettes on aircraft as there has been some confusion over whether the Department's ban on smoking of tobacco products includes a ban on use of electronic cigarettes. We see no reason to treat electronic cigarettes any differently than traditional cigarettes," it states.

The proposed rule cites a 2010 decision by the U.S. Court of Appeals for the DC Circuit, Sottera, Inc. v. Food & Drug Administration (627 F.3d 891), where the court held that e-cigarettes and other products made or derived from tobacco can be regulated as "tobacco products" under the Family Smoking Prevention and Tobacco Control Act of 2009, but if the products are marketed for therapeutic purposes, they will then be regulated as drugs or devices under the Food, Drug, and Cosmetic Act.

E-cigarettes consist of a replaceable cartridge that usually contains liquid nicotine, a heating element, and the battery and electronics.

DOT said Amtrak has banned the use of electronic smoking devices on trains and in any area where smoking is prohibited, the Air Force Surgeon General issued a memorandum on safety concerns of e-cigarettes and placed them in the same category as tobacco products, and the U.S. Navy has banned them below decks in submarines. "Moreover, several states have taken steps to ban either the sale or use of electronic cigarettes, in the absence of federal regulation," the NPRM states.

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