E Cigarettes. shutterstock

Does using an e-cigarette count as “smoking”? A federal appeals court is not sure, but either way, it can’t be done on an airplane.

In a 2-1 opinion Friday, the U.S. Court of Appeals for the District of Columbia upheld a Transportation Department regulation barring the use of e-cigarettes on airplanes. The judges ruled that, because the definition of “smoking” is ambiguous, it’s appropriate to defer to the agency’s interpretation of the law under which it issued the regulation.

Judge Douglas Ginsburg dissented, writing that the law should be interpreted based on the meaning of “smoking” at the time it was passed in 1987, before the invention of e-cigarettes. The plaintiffs agree, and are considering an appeal to the U.S. Supreme Court.

“The statutory interpretation point on which Judge Ginsburg dissents might be the basis for a cert petition,” said Sam Kazman, general counsel of nonprofit, libertarian-leaning Competitive Enterprise Institute, one of the plaintiffs on the case.

The ruling was the first of two losses for manufacturers and users of e-cigarettes Friday. The federal district court in D.C. also ruled for the U.S. Food and Drug Administration in a case challenging that agency’s decision to regulate e-cigarettes the same way it does conventional cigarettes. E-cigarette advocates and a vaping company claimed the FDA exceeded its authority by deeming e-cigarettes as “tobacco products.”

But U.S. District Judge Amy Berman Jackson of the District of Columbia was quick to assure users that her ruling would not ban the sale of the devices.

“The court wishes to reassure the many worried vapers who followed these proceedings closely that this case is not about banning the manufacture or sale of the devices,” Berman Jackson wrote. “That is not what the Deeming Rule does or what it was intended to accomplish. In the Deeming Rule, the FDA simply announced that electronic cigarettes, or electronic nicotine delivery systems (“ENDS”) would be subject to the same set of rules and regulations that Congress had already put in place for conventional cigarettes.”

Covington & Burling partner Ben Block and associates Robert Jacques and Kevin King represented the e-cigarette company in the case, Nicopure Labs. Eric Gotting and Azim Chowdhury, partners at Keller and Heckman, represented the advocacy groups.

The case against the Transportation Department was argued by Kazman of CEI along with senior attorney Hans Bader. Other plaintiffs included the Consumer Advocates for Smokefree Alternatives Association, and an individual, Gordon Cummings. Kazman and Bader represented all three.

In the opinion, Senior Judge A. Raymond Randolph wrote that the court needed to consider whether, in passing the law, Congress “addressed the question at issue: does ‘smoking’ in [the law] cover e-cigarette use?” After dissecting different definitions from dictionaries and elsewhere from 1987, it was still unclear.

“So here is where we are,” Randolph wrote. “Although the statute does not define ‘smoke,’ some dictionary definitions, some state laws, and some characterizations of smoking by the e-cigarette industry itself support the department but other dictionary definitions and other state laws support petitioners. We therefore cannot say that Congress spoke to the precise question at issue.”

Ginsburg’s dissent criticized the court for what he said was a departure from normal reasoning in order to “redefine” the term smoking as it was understood in 1987. Ginsburg wrote that if e-cigarettes counted as smoking, then “the steam from hot coffee” or “breath freshening spray” could also count. He wrote that “what ‘smoking’ meant in 1987 with respect to passengers on airplanes is beyond doubt, inasmuch as e-cigarettes did not then exist.”

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

Smoking is an issue with which Ginsburg is familiar. He was nominated to the Supreme Court the same year the law was passed, 1987, by President Ronald Reagan. But he withdrew from consideration amid allegations that he had smoked marijuana when he was an assistant professor at Harvard Law School.

Judge Brett Kavanaugh also wrote a concurrence, pointing out the difficulty of the question: “Although it is a close call, the better interpretation of the term ‘smoking’ in this statute covers e-cigarettes as well as conventional tobacco cigarettes,” he wrote.

Kazman, the CEI general counsel, said that in addition to Ginsburg’s dissent, even Randolph’s opinion had some elements with which he agreed. Randolph criticized the defendants’ assertion that DOT could ban e-cigarettes in a “precautionary approach,” even though the effects of e-cigarette vapor on human health are not yet fully clear.

“We’re still disappointed DOT got away with it,” Kazman said.