The rule banning vaping on commercial flights was brought into effect in 2016; CASAA and The Competitive Enterprise Institute argued that the rule came about from the use of poor quality science and a breech of legal authority. Also, they claimed, any reference to “no smoking” didn’t apply to a product that produces no smoke.
The Department of Transport rejected and opposed the objections to its ban, and the Court of Appeals found in their favour in a 2 to 1 majority vote.
A lawyer acting for The Competitive Enterprise Institute said: "Today’s court ruling creates a dangerous new rule for interpreting the law. It allows the commonly understood language of Congress' 30-year-old no-smoking statute to be stretched in a ban on e-cigarettes; even though eCigarettes involve no combustion and produce no smoke.”
Judge Raymond Randolph and Judge Brett Kavanaugh found in favour of The Department of Transport, stating that they acted within their rights. They wrote: “Although the statute does not define ‘smoke,’ some dictionary definitions, some state laws, and some characterisations of smoking by the e-cigarette industry itself support the department.”
They also claimed that (despite possibly being flawed) the studies supported a notion that vape could harm other passengers in the flight cabin. This mainly referred to a single study from last year, where researchers alleged a link between vape and genetic suppression of the human immune system.
Judge Douglas Ginsburg was the lone voice on the appeals council who supported CASAA’s appeal: "True, e-cigarettes might fit within these definitions if one squints hard enough, but as the court itself notes, ‘we cannot just tally the dictionary definitions’.”
“Any risks to airline passengers are totally undemonstrated,” added the Institute’s lawyer. “[Vaping] is an entirely different activity [from smoking]”.