[00:00:05] Speaker 00: Competitive Enterprise Institute at ELL Petitioners versus United States Department of Transportation at ELL. [00:00:11] Speaker 00: Mr. Catherine for Petitioners, Ms. [00:00:13] Speaker 03: Morrissey for the respondents. [00:00:37] Speaker 02: May it please the court? [00:00:39] Speaker 02: My name is Sam Casman. [00:00:40] Speaker 02: I'm here on behalf of Consumer Advocates for Smoke-Free Alternatives for the Competitive Enterprise Institute and for individual petitioner Gordon Cummings. [00:00:51] Speaker 02: In 1987, a panel of this court jokingly remarked that, [00:00:56] Speaker 02: When some people will find ambiguity, even when it comes to a no smoking sign, this is such a case, Your Honor. [00:01:04] Speaker 04: You know, that was brought up in the Microsoft antitrust argument. [00:01:09] Speaker 04: Judge Sentel said to former Judge Bork, you didn't even find ambiguity in a no smoking sign. [00:01:16] Speaker 04: He said yes, and I take advantage of it many times. [00:01:20] Speaker 02: I was referring not to that case, but to this court's decision in the international UAW versus General Dynamics. [00:01:28] Speaker 02: And in fact, DOT is attempting to take advantage of that here. [00:01:33] Speaker 02: DOT claims that e-cigarettes fall under its authority [00:01:39] Speaker 02: to interpret the ban on smoking enacted by Congress in the year 2000. [00:01:45] Speaker 02: That in fact, that statute, because it failed to define smoking, gave DOT the authority not only to define it, but to refine that definition in the light of changing technologies and changing passenger behavior. [00:02:01] Speaker 02: One analogy it provides for that [00:02:04] Speaker 02: is a situation that came up before this court in the 2011 Cablevision case involving a statute that concerned satellite broadcasting. [00:02:14] Speaker 02: And somehow this became, and the court partly construed that as, in fact, giving the agency, the SEC, authority to actually regulate new technologies as they develop. [00:02:28] Speaker 02: A no smoking sign is a far cry from a statute involving satellite programming. [00:02:39] Speaker 01: How are you defining smoking? [00:02:40] Speaker 02: Smoking, I believe, should be defined in terms of the conventional definition at the time that that statute was enacted. [00:02:47] Speaker 02: And if you go back to the dictionaries of that time, they all involve the same elements of what smoking involves. [00:02:55] Speaker 02: That is, it is the combustion of vegetable matter, almost always tobacco, but not necessarily tobacco, that produces both vapor and smoke. [00:03:08] Speaker 02: There may be several dictionaries that give slightly varying definitions. [00:03:14] Speaker 02: But frankly, the fact that you have outlier definitions does not change the plain meaning of that term. [00:03:22] Speaker 02: That term is plain. [00:03:24] Speaker 02: It is simple. [00:03:25] Speaker 02: It is not a license for DOT to go into an exercise in interpretation. [00:03:31] Speaker 02: And in fact, that is where this case should have ended. [00:03:35] Speaker 02: That is where this case should have ended. [00:03:38] Speaker 01: But what we have are- Well, they have a whole separate independent argument, as you're well aware. [00:03:44] Speaker 01: I'm going to say it's inadequate. [00:03:45] Speaker 01: I don't want to take you off this, but we need to get to that at some point. [00:03:47] Speaker 01: Absolutely. [00:03:49] Speaker 02: So let me just explain. [00:03:50] Speaker 02: First of all, e-cigarettes are relatively small, battery powered, handheld devices. [00:03:58] Speaker 02: that contain an atomizer that is powered by the battery, a small capsule containing a liquid that quite often contains nicotine in solution, and electronics as well. [00:04:10] Speaker 04: And the nicotine is derived from tobacco. [00:04:12] Speaker 02: Yes. [00:04:13] Speaker 02: Yes. [00:04:13] Speaker 02: But we are not talking here about a tobacco product, which FDA was found by this court in Satara to have jurisdiction over under not the Food, Drug, and Cosmetics Act, [00:04:25] Speaker 02: but the Tobacco Act, which in fact talked of tobacco products. [00:04:30] Speaker 02: This is not a tobacco products case. [00:04:34] Speaker 02: Though it's noteworthy that in that case, in Sotera, this court remarked that FDA presented no evidence that anyone had been harmed by an e-cigarette. [00:04:45] Speaker 02: And that, I submit to you, is still the situation now. [00:04:49] Speaker 02: It is still the situation now. [00:04:51] Speaker 02: The second point to remember. [00:04:52] Speaker 02: Is that the test, though? [00:04:54] Speaker 04: Is it anyone? [00:04:57] Speaker 04: Or does it exclude those who are actually smoking [00:05:01] Speaker 04: cigarette, or inhaling the vapor, or whatever. [00:05:06] Speaker 04: It's the second-hand consequence that they regulated on the basis of the president. [00:05:12] Speaker 02: I'm sorry, in Zotero? [00:05:14] Speaker 02: Or in this case? [00:05:15] Speaker 02: In this case. [00:05:16] Speaker 02: In this case, yes, that is correct. [00:05:17] Speaker 02: DOT is focusing on the second, possibly the third-hand effects. [00:05:22] Speaker 02: But the important thing is first, not every airline company has prohibited the use of these cigarettes. [00:05:31] Speaker 02: on its planes. [00:05:33] Speaker 02: When we challenged DOT to provide a single instance of anyone who had suffered discomfort under the safety and adequacy provision, which is another statute which DOT claims is independent, but which we will contest, they said, of course we can't be expected to have come up with any such cases because the airlines have in fact banned e-cigarette use. [00:05:57] Speaker 03: But Schiller actually came forward as such a person. [00:06:00] Speaker 03: Excuse me? [00:06:00] Speaker 03: Schiller came forward as such a person. [00:06:03] Speaker 02: I'm not tapping the thing there. [00:06:05] Speaker 03: Sorry. [00:06:05] Speaker 03: Schiller, a person named Schiller, came forward in the comment period as such a person, saying that she had been exposed to secondhand e-cigarette vapor. [00:06:21] Speaker 03: experienced, quote, immediate respiratory, immediate, close quote, respiratory irritation. [00:06:26] Speaker 03: It's a JA-185. [00:06:27] Speaker 02: Yes, I believe, yes. [00:06:29] Speaker 02: She, this did not occur on an airline. [00:06:31] Speaker 02: This occurred in a location where someone deliberately blew e-cigarette smoke in her face. [00:06:38] Speaker 02: And she said that she, as an asthmatic, did in fact suffer irritation as a result. [00:06:44] Speaker 04: You don't mean e-cigarette smoke, do you? [00:06:47] Speaker 02: I'm sorry? [00:06:48] Speaker 02: Please tell him. [00:06:50] Speaker 02: It will happen occasionally, but I believe in vapor. [00:06:52] Speaker 02: And this is vapor not from burning, but vapor from heating. [00:06:58] Speaker 02: Yes. [00:06:59] Speaker 02: And she said, in fact, it strikes me that the circumstances that she described could well have amounted to an intentional assault, a batter. [00:07:08] Speaker 02: That is not the situation that's occurred on any airplane flight to our knowledge. [00:07:12] Speaker 03: Well, it's evidence that the vapor can be irritating, isn't it? [00:07:15] Speaker 02: It can, that's possible. [00:07:17] Speaker 02: On the other hand, the number of asthmatics who are also smokers talked about how the fact that they have access to e-cigarettes has incredibly improved their health and has made what used to be torturous flights because they had to risk nicotine withdrawal has made that bearable to them. [00:07:36] Speaker 02: But the point is that after four and a half years after the close of the comment period in this rulemaking, DOT could not point to a specific instance, airline instances, of any passenger having been discomforted. [00:07:52] Speaker 03: Because, as you said, the airlines don't allow it. [00:07:54] Speaker 02: The airline don't, and so the question becomes, and this circuit has a series of cases, if there is no problem, if there is no problem, the whole rationale for having to rule becomes extremely questionable. [00:08:05] Speaker 02: Now I think the OT does provide a real- Why don't the airlines allow it? [00:08:10] Speaker 02: Excuse me? [00:08:11] Speaker 02: Why don't the airlines allow it? [00:08:13] Speaker 02: I believe they thought that the number of passengers might object, that passengers might think that what was an e-cigarette was actually a real cigarette, and that this might cause problems for them. [00:08:24] Speaker 02: But this is the policy they adopted. [00:08:26] Speaker 01: What's important, though, is that- Do any airlines allow that you're aware of? [00:08:32] Speaker 02: I think a number of small charter flights were allowing it until this rule, which actually expanded the ban to cover charter flights that had previously been exempt. [00:08:43] Speaker 03: with a previously not imposed self-imposed they had not previously self-imposed the ban. [00:08:51] Speaker 02: No. [00:08:52] Speaker 03: Right? [00:08:52] Speaker 03: No. [00:08:53] Speaker 02: Well, once again, DOT could have looked to those flights and see did we get any instances of passenger complaints there. [00:08:59] Speaker 02: And the fact is they did not. [00:09:01] Speaker 02: They did not come up with anything. [00:09:02] Speaker 02: So what DOT really points to, I think, as a real threat. [00:09:08] Speaker 04: The question arises in my mind when [00:09:11] Speaker 04: Are there any commercial airliners, passenger airlines, that allow e-cigarettes? [00:09:19] Speaker 02: To my knowledge, no. [00:09:20] Speaker 02: I believe DOT makes that quite plain in its ventilator. [00:09:26] Speaker 04: So the standing question for the competitive enterprise is not a membership organization. [00:09:33] Speaker 04: But you have a staff member who claims that what's the effect on him regardless of how [00:09:45] Speaker 04: DOT rules or how we rule or whatever is still going to not be able to have these. [00:09:52] Speaker 02: Gordon Cummings is a CDI employee, as laid out in his affidavit, who travels quite frequently, both on pleasure and on business. [00:10:01] Speaker 02: In the past, when this was simply a airline company policy, he occasionally did vape quite discreetly. [00:10:09] Speaker 02: If he was asked to stop, he'd stop. [00:10:11] Speaker 02: But his ability to vape made a number of flights quite bearable for him. [00:10:15] Speaker 02: It's his view, it's his very substantiated view. [00:10:19] Speaker 02: In the face of the DOT ban, he faces, if he is caught, not just a request to please stop that, but substantial penalties as well. [00:10:30] Speaker 02: So I believe on that basis, that does give him standing. [00:10:32] Speaker 02: Plus, the DOT itself says, absent our rule, they're expressed about this, absent our rule, airlines may well start changing their policies. [00:10:42] Speaker 02: Then the case would be right. [00:10:45] Speaker 02: But the problem is, it was even the threat of civil penalties under the DOT rule that has made flights much worse off for Mr. Cummings. [00:10:55] Speaker 02: In the past, he was a vapor. [00:10:56] Speaker 02: He was a discrete vapor. [00:10:58] Speaker 02: He stopped when he was requested. [00:10:59] Speaker 02: He never caused any problem. [00:11:02] Speaker 02: Now he can't do that. [00:11:03] Speaker 02: And that's the same situation described by Elaine Keller. [00:11:06] Speaker 02: In her affidavit, she was a founding member of this consumer group, Consumers for Smoke-Free Alternatives, which now numbers over 2,200,000 members. [00:11:18] Speaker 02: airline flights for her had become very unbearable, not as a result of company policy, but as a result of the threat of DOT-imposed flying. [00:11:28] Speaker 02: As a result, she no longer flies as frequently, she quite often drives instead, and the substitution of driving for flying raises some very severe risk issues, risk and safety issues, that the DOT totally ignores. [00:11:44] Speaker 03: One other point about Mr. Cummings... Did they talk about substitution in the rule? [00:11:48] Speaker 03: They talked about substitution. [00:11:50] Speaker 02: Yes, and they said that people who were worried about nicotine withdrawal, such as passive members, could use other alternatives. [00:11:59] Speaker 02: But those alternatives are very unsatisfactory for a number of people. [00:12:03] Speaker 03: Alternative modes of transportation? [00:12:05] Speaker 03: Alternative means of getting nicotine? [00:12:07] Speaker 02: Alternative means of getting nicotine. [00:12:09] Speaker 02: They did not address the safety risk of driving rather than flying, except to the extent to say that, well, perhaps some people now will substitute more flying because they're happier about the e-cigarette rule, a total piece of speculation. [00:12:24] Speaker 03: I think they said that perhaps a few people will drive rather than fly, but it will be very few, because most people who would like to continue to get into the team will use some other form for the period of a flight. [00:12:36] Speaker 02: Or they will have much more uncomfortable flights. [00:12:39] Speaker 03: Given that they're not introducing a ban, but rather introducing a more substantial penalty, [00:12:47] Speaker 03: than the airlines can impose, it was quite reasonable to suggest that there wouldn't be a big effect on the number of travelers. [00:12:56] Speaker 02: We think that issue could have borne more analysis just in terms of a discussion by DoT that, yes, some people as a result of doing the substitution may in fact incur a higher risk of death than they otherwise would. [00:13:12] Speaker 02: So I wanted to explain why the safety and adequate ground, in fact, is not independent, as DOT claims it is. [00:13:21] Speaker 02: If you look at the structure of DOT's Federal Register rule, the entire discussion of hazard [00:13:29] Speaker 02: of possibly dangerous chemicals, all takes place on the pages dealing with the statutory ban and with DOT's alleged authority to refine its definition. [00:13:40] Speaker 02: That's where all that discussion takes place. [00:13:43] Speaker 03: What page is that? [00:13:44] Speaker 02: This is on, let's see, 11420 of the actual decision. [00:13:50] Speaker 02: I don't have the joint appendix. [00:13:52] Speaker 02: That all takes place before DOT gets to talking about its authority to regulate under the safe and adequate ground. [00:14:03] Speaker 02: Once it gets to the safe and adequate ground, it basically incorporates those previous discussions. [00:14:08] Speaker 02: Now remember, those discussions were the following. [00:14:11] Speaker 02: DOT decides e-cigarettes fall under the statutory ban. [00:14:14] Speaker 02: And then it poses to itself the question, is there any reason we should now exempt e-cigarettes from the statutory ban? [00:14:21] Speaker 02: And it looks at studies which all talk about potential effects at certain concentrations, none of which document any adverse effect of secondhand e-cigarette vapor, and all of which call for future research. [00:14:38] Speaker 02: And then when it comes to safe and adequate, DOT says, well, some people might be concerned about the chemicals discussed in those studies. [00:14:48] Speaker 02: Now it's one thing if you're talking, and DOT also differentiates safe and adequate from harm. [00:14:55] Speaker 02: It says we can make a finding of a violation of the safety and adequate issue without any definitive proof of harm. [00:15:04] Speaker 02: We simply need to have evidence of passenger discomfort. [00:15:08] Speaker 02: Look, it's one thing when you're talking harm to take a precautionary principle approach and say, these chemicals need to be shown to be safe. [00:15:16] Speaker 02: I think it's questionable, but at least it's arguable. [00:15:18] Speaker 02: But when you're talking about passenger comfort, the notion of applying a precautionary principle to that, I think, defies any justification whatsoever. [00:15:28] Speaker 02: If there are reports of problems, DOT can deal with them at that point. [00:15:32] Speaker 02: Remember, we're talking about reporting [00:15:33] Speaker 02: reports of coughing, reports about skin rashes, whatever. [00:15:37] Speaker 02: In the face of those reports, deity is well equipped to deal with that. [00:15:41] Speaker 02: But to say we need a showing that there will be no passenger discomfort, when all of its studies dealt not really with passenger discomfort, but with safety, I think, shows this was an afterthought. [00:15:53] Speaker 02: It was not an independent ground. [00:15:55] Speaker 02: It was an afterthought, just like its claim that they can regulate this under safe and deceptive practices was also an afterthought. [00:16:03] Speaker 03: When you say passenger discomfort, you're talking about irritation, what they call irritation, right? [00:16:09] Speaker 02: That would be one aspect of it. [00:16:12] Speaker 02: Another would be passengers worrying about what they might be inhaling if they were to see someone vaping momentarily. [00:16:18] Speaker 03: Okay, well that's the subject. [00:16:20] Speaker 03: There is talk about that, especially in the NPR round, about the subjective concern. [00:16:26] Speaker 03: But on the objective one is actual irritation, correct? [00:16:31] Speaker 02: I think the duty has quite a bit of leeway. [00:16:36] Speaker 02: It relies heavily on the 1986 case action on smoking and health. [00:16:42] Speaker 02: But even there, the court noted that this did not authorize that every single detail of airline service be regulated under that provision. [00:16:56] Speaker 02: It noted, for example, that in the FAA Modernization Act, Congress itself talked about [00:17:01] Speaker 02: the respect that should be given to market forces. [00:17:03] Speaker 03: Well, let me ask you this. [00:17:04] Speaker 03: If they have rock-solid evidence, which they don't, if they have rock-solid evidence of secondary vapor having secondary harm, irritating people's throats and eyes or so on, would you say it's beyond their capacity under action for smoking and health? [00:17:21] Speaker 02: No, no. [00:17:22] Speaker 02: Action for smoking and health was based on a very strong record, as he itself characterizes it, of extreme passenger discomfort and irritation at secondhand smoke. [00:17:31] Speaker 02: But there's nothing like that in this record. [00:17:33] Speaker 03: I understand your point on that. [00:17:35] Speaker 03: So that's the crux of your point, isn't it? [00:17:38] Speaker 03: It's about the quality of the evidence, not the legal standard. [00:17:43] Speaker 02: And also the fact that, as we contend, those other two issues, those other two bases, one of which was actually withdrawn right after we challenged it in our opening brief, even the remaining basis of safety and adequacy was, in fact, an afterthought, whose outcome really, in a sense, was almost preordained by its treatment of its alleged authority regarding no smoking. [00:18:05] Speaker 04: Even if passengers, according to your argument, [00:18:10] Speaker 04: perceive harm, and that's totally faceless on their part. [00:18:16] Speaker 04: Isn't that a harm, the very fact that they perceive it as harmful? [00:18:21] Speaker 02: In a theoretical sense, yes, but quite a few people put comments into the record about how they are irritated, about how they perceive harm from the smell of strong colognes, from the fact that they may be sitting next to someone who has had too many drinks and is sweating all certain chemicals, which can be [00:18:37] Speaker 02: chemically documented. [00:18:39] Speaker 04: Whether it's enough... And smokeless tobacco is permitted, right? [00:18:44] Speaker 04: Yes, it is. [00:18:45] Speaker 02: In fact, Mr. Cummings uses that. [00:18:46] Speaker 04: You have to have a cup. [00:18:47] Speaker 04: I mean, that's pretty disgusting if you're sitting next to someone. [00:18:49] Speaker 02: But Mr. Cummings, as he's relation is affidavit, has been forced into relying on that method, which he regards as less healthy, solely because of the DOT rule. [00:19:01] Speaker 01: Okay, we'll give you some time on rebuttal. [00:19:03] Speaker 01: Thank you. [00:19:25] Speaker 00: May it please the court, Tara Morrissey for the Department of Transportation. [00:19:28] Speaker 00: The Department relies on two sources of statutory authority to support its reasonable decision to protect airline passengers from the potential harms of electronic cigarettes. [00:19:39] Speaker 00: First, the statutory smoking prohibition. [00:19:42] Speaker 00: Second, the requirement to provide safe and adequate interstate air transportation. [00:19:47] Speaker 00: The statutory smoking prohibition easily encompasses modern smoking technologies. [00:19:52] Speaker 01: Can I ask something at the outset? [00:19:55] Speaker 01: Does anything turn on which ground? [00:19:59] Speaker 01: is the basis for a decision if we were to agree with you on one or the other ground. [00:20:06] Speaker 00: Thank you, Judge Kavanaugh. [00:20:07] Speaker 00: I do want to clarify that the statutory smoking prohibition is somewhat broader and that it applies to interstate and foreign transportation. [00:20:17] Speaker 00: The safe and adequate provision applies only to interstate transportation. [00:20:23] Speaker 01: So it's not really an independent ground then? [00:20:27] Speaker 00: It's an independent source of authority. [00:20:29] Speaker 00: It's not as broad. [00:20:32] Speaker 00: Petitioners have made no arguments with respect to the application of the rule to foreign air transportation. [00:20:38] Speaker 00: If this court were to uphold it solely under the safe and adequate ground, the foreign transportation question would remain open. [00:20:47] Speaker 00: The term smoking in the smoking prohibition is ambiguous. [00:20:51] Speaker 00: Congress left a gap for the agency to fill. [00:20:54] Speaker 00: It did not define the terms smoking. [00:20:57] Speaker 00: It did not specify the devices to which the prohibition applies. [00:21:01] Speaker 00: And petitioners failed to mention that Congress also included an express and specific delegation of authority to the agency to apply the prohibition and thus to define its scope. [00:21:13] Speaker 00: This scheme grants ample authority to the agency to apply the smoking prohibition to modern smoking technologies, consistent with the statutory purposes, which are threefold. [00:21:25] Speaker 00: To improve air quality within the confined aircraft cabin with limited ventilation. [00:21:30] Speaker 00: Second, to reduce the risk of adverse health effects on passengers and crew members. [00:21:35] Speaker 04: What is the risk? [00:21:36] Speaker 04: What's the probability of risk to the health of anybody in a cabin? [00:21:41] Speaker 00: There are risks, Your Honor, that are not fully developed, but we know that electronic cigarettes... What's the probability? [00:21:49] Speaker 04: I mean, if the probability is one out of a thousand, you still think that you have authority to regulate? [00:21:56] Speaker 00: Under the statutory smoking prohibition, yes, Congress decided to prohibit smoking, and this is a form of smoking that agency has... That kind of begs the question. [00:22:09] Speaker 04: consequences of it, and yet you can't quantify any of the consequences. [00:22:15] Speaker 00: Correct, Your Honor. [00:22:15] Speaker 04: The evidence is still developing on this, and we do know that... So in other words, is it your theory of regulatory authority that an agency like DOT can regulate on the basis of, well, we don't know, therefore we prohibit it? [00:22:34] Speaker 00: With respect to the safe and adequate provision, yes, we are regulating based on passenger discomfort that's grounded in health concerns, and with respect to the statutory smoking. [00:22:43] Speaker 04: So the burden becomes on the, or the opponents of the rule to prove that it's absolutely safe, and if they can't prove that, then we can prohibit it. [00:22:54] Speaker 00: The agency has a broad authority to ensure quality service, Your Honor. [00:22:58] Speaker 00: And where passenger, in 1973, when the Civil Aeronautics Board first began to regulate smoking, the evidence showed that low levels of contaminants did not present a health hazard to non-smokers. [00:23:12] Speaker 04: It wasn't until- Are you familiar with Professor Sunstein's article on the plausibility principle? [00:23:21] Speaker 04: I'm not, Your Honor, I'm sorry. [00:23:25] Speaker 04: It's a rather deep and dense article, but basically what he says is the principle you've just expounded is incoherent. [00:23:36] Speaker 04: Totally incoherent as a regulatory basis. [00:23:41] Speaker 04: not helpful. [00:23:43] Speaker 00: Right. [00:23:44] Speaker 00: Your honor, these chemicals, there's evidence of the chemicals that are emitted by electronic cigarette aerosol. [00:23:50] Speaker 04: Yeah, the carcinogens, right? [00:23:51] Speaker 00: Nicotine, carcinogens, formaldehyde. [00:23:54] Speaker 04: Every vegetable that you eat contains carcinogens. [00:23:59] Speaker 04: That's how plants protect themselves from insects and disease. [00:24:04] Speaker 04: Do they eat cigarettes, have more carcinogens in them, and then are helping a broccoli? [00:24:09] Speaker 00: I'm not sure about the quantification, Your Honor. [00:24:11] Speaker 00: What this is doing is it's introducing a new source of contaminants into the aircraft cabin with limited ventilation that high-risk passengers, children, babies, the elderly, pregnant women, are inhaling. [00:24:27] Speaker 00: And eating a vegetable may be quite different from inhaling it. [00:24:33] Speaker 03: our evidence shows that inhaling is... The question is whether forcing the vegetable on their neighbor is... Well, and that's true. [00:24:39] Speaker 00: No one has to eat the broccoli, right, that you're eating here. [00:24:43] Speaker 00: This is... There's nowhere for these... You can't smoke it. [00:24:45] Speaker 00: There's nowhere for the passengers to go. [00:24:47] Speaker 00: I mean, the action on smoking and health [00:24:54] Speaker 00: directly applies here. [00:24:55] Speaker 00: This is just an application of that. [00:24:57] Speaker 00: We have an even stronger basis for regulating because the agency didn't even know about the harms and here we have [00:25:04] Speaker 00: Well, all of the evidence has shown that there is some harm and that there is a risk here. [00:25:10] Speaker 00: And it's not entirely understood because evidence will continue to develop. [00:25:14] Speaker 00: It wasn't until a decade after the Civil Aeronautics Board started to regulate smoking that the Surgeon General's report came out about the secondhand effects of regular tobacco smoke. [00:25:26] Speaker 03: You're saying that, if you're correct about the hazard, you're saying that enables you to define this as smoking. [00:25:35] Speaker 03: when it didn't exist at the time the statute was passed. [00:25:39] Speaker 03: It doesn't have the same characteristics of smoking. [00:25:42] Speaker 03: It's a different form of putting something into the air. [00:25:46] Speaker 00: This is the new way to smoke. [00:25:48] Speaker 01: I thought you were making a separate argument here. [00:25:51] Speaker 01: This was your safe and adequate argument. [00:25:53] Speaker 00: I transitioned to that in light of the questions about the health risks. [00:25:56] Speaker 01: But the smoking argument [00:25:58] Speaker 01: It's not dependent on that, correct? [00:26:03] Speaker 00: Correct. [00:26:04] Speaker 00: We don't dispute that traditional tobacco products were the particular manifestation of the problem at the time, in 1987, but Congress did not freeze that conception of smoking in time. [00:26:16] Speaker 00: It used an undefined term. [00:26:17] Speaker 00: It didn't specify the devices. [00:26:19] Speaker 01: What do you think the best definition of smoking is? [00:26:21] Speaker 00: The best definition is to inhale and exhale fumes or smoke of tobacco or similar substances. [00:26:28] Speaker 00: It does not require combustion or burning. [00:26:30] Speaker 00: Petitioners' definition is far too narrow. [00:26:32] Speaker 00: That wouldn't even include devices that have existed in the past and that may exist that heat tobacco without burning it, such as certain types of water hookahs, heat not burned tobacco cigarettes that existed that actually heat tobacco leaves without burning them. [00:26:49] Speaker 00: combustion is not an indispensable requirement, and Congress certainly did not say that. [00:26:54] Speaker 04: Instead, it delegated authority to the agency to determine... So your definition of smoke to smoke is to inhale and exhale products that are derived from tobacco. [00:27:07] Speaker 04: That's what you said, right? [00:27:09] Speaker 00: the smoker fumes of tobacco or similar substances. [00:27:14] Speaker 04: Because if you inhale and exhale, it doesn't necessarily create a cloud of vapor or smoke or anything else. [00:27:24] Speaker 00: In this situation, these electronic cigarettes do emit clouds of chemicals, Your Honor. [00:27:29] Speaker 00: And I should be clear that when I am talking about the definition of smoking, that's a dictionary definition that supports our view. [00:27:36] Speaker 00: But the agency has reasonably defined smoking to be the use of a tobacco product, electronic cigarettes. [00:27:43] Speaker 01: They argue, I think with some evidence to support it from the dictionary definitions, that most of the dictionary definitions are not what you just said. [00:27:53] Speaker 00: I disagree, Your Honor. [00:27:54] Speaker 00: We've cited a couple, and there are many more. [00:27:56] Speaker 00: And they overwhelmingly do not specify combustion or burning in the dictionary. [00:28:01] Speaker 04: Were these dictionary definitions adopted before the advent of these cigarettes? [00:28:09] Speaker 00: I'm sorry, before electron. [00:28:11] Speaker 04: Before the advent of these cigarettes. [00:28:14] Speaker 00: Oh, yes, definitely, Your Honor. [00:28:16] Speaker 04: Before the advent. [00:28:17] Speaker 04: So how do we know they took into account these cigarettes? [00:28:20] Speaker 04: It's the same problem that we [00:28:22] Speaker 04: that one has with the statutory definition. [00:28:28] Speaker 00: Congress? [00:28:30] Speaker 03: I thought your point was to offer these definitions as of the time the statute was passed. [00:28:36] Speaker 00: That's correct. [00:28:37] Speaker 00: I mean, this is sort of the conception of smoking that existed. [00:28:40] Speaker 03: And when the statute was passed. [00:28:41] Speaker 00: At the time. [00:28:42] Speaker 00: And it did not freeze. [00:28:44] Speaker 00: It does not foreclose. [00:28:45] Speaker 00: It certainly does not unambiguously foreclose. [00:28:47] Speaker 03: But clearly it precedes, as just Randolph is asking, it clearly precedes the advent of e-cigarettes. [00:28:52] Speaker 03: They're unknown. [00:28:53] Speaker 00: Yes, that's correct. [00:28:53] Speaker 00: And Congress of this court has held in Sabre, for example, that just because Congress could not have foreseen a development in the industry, [00:29:01] Speaker 00: does not mean that it is limited to the circumstances of historical enactment. [00:29:06] Speaker 04: What is the status? [00:29:08] Speaker 04: I knew this at one time, but I've forgotten now. [00:29:10] Speaker 04: The development of these cigarettes, did they exist at the time that Congress passed the smoking ban? [00:29:22] Speaker 00: The initial smoking ban was a temporary ban in 1987. [00:29:25] Speaker 00: It's been amended several times since then. [00:29:31] Speaker 04: Was that the seating requirement or was it a total ban? [00:29:35] Speaker 00: That was a ban on flights two hours or less. [00:29:39] Speaker 04: two hours or less. [00:29:40] Speaker 04: Were e-cigarettes in existence at the time? [00:29:43] Speaker 00: No, e-cigarettes did not come over really in their current form until 2006-2007 into the United States, Your Honor. [00:29:50] Speaker 00: So this is a really recent development. [00:29:52] Speaker 04: In the United States, what about in Europe? [00:29:55] Speaker 00: They were in Europe a few years before that. [00:29:57] Speaker 00: The current form was developed in China in about 2003. [00:30:00] Speaker 04: This applies to planes. [00:30:02] Speaker 04: The smoke ban applies to planes taking off in Europe to come to the United States, right? [00:30:09] Speaker 00: Right. [00:30:09] Speaker 00: That's correct. [00:30:10] Speaker 00: This is the new way to smoke. [00:30:12] Speaker 00: These devices, they function like cigarettes. [00:30:16] Speaker 00: They're used like cigarettes. [00:30:17] Speaker 00: They release clouds of chemicals like cigarettes. [00:30:20] Speaker 01: Would your argument or definition on smoking apply to asthma inhalers? [00:30:27] Speaker 00: The department's regulation would not apply to asthma inhalers. [00:30:30] Speaker 01: I know that, because it was expressly exempted from the regulation. [00:30:35] Speaker 01: But the question is whether your definition of smoking would cover asthma inhalers. [00:30:39] Speaker 01: I assume the answer is yes, because that's why you felt the need to. [00:30:43] Speaker 00: No, Your Honor, the exclusion for medical devices was a clarifying exclusion. [00:30:47] Speaker 00: Our definition is the use of a tobacco product, electronic cigarettes, or similar products. [00:30:53] Speaker 00: And the exclusion for medical devices was intended to make absolutely clear that medical devices, which the department is required to permit passengers to bring on board, are certainly not prohibited under the smoking ban. [00:31:11] Speaker 04: And there's some indication, at least in the news reports, that these cigarettes can cause fires, but the agency didn't rely on it, right? [00:31:22] Speaker 00: No, Your Honor. [00:31:23] Speaker 00: There are separate regulations. [00:31:24] Speaker 00: Electronic cigarettes can't be put in checked bags because of lithium battery concerns, but this has not been promulgated in pursuant to fire concerns. [00:31:33] Speaker 00: That's correct. [00:31:34] Speaker 00: It is promulgated based on [00:31:38] Speaker 00: the clear purposes of the statutory smoking prohibition and based on passenger discomfort, which as Judge Ginsburg mentioned, there is ample evidence in the record of [00:31:52] Speaker 00: consumer discomfort and consumers who have suffered direct effects from these devices. [00:31:57] Speaker 00: In addition to Ms. [00:31:58] Speaker 00: Schiller, there are also comments from, for example, a train passenger who felt a burning in his or her chest when someone was using electronic cigarettes a few rows back. [00:32:09] Speaker 00: That's comment 649. [00:32:11] Speaker 00: There is also comments that people whose friends or sons use electronic cigarettes are bothered by the odor. [00:32:18] Speaker 00: Comments 135 and 268. [00:32:21] Speaker 00: a former user who said that his loved ones couldn't stand it, comment 402. [00:32:26] Speaker 00: And there are also comments reflecting that passengers' comfort is particularly intense in light of what we know now about electronic cigarettes. [00:32:34] Speaker 00: Passengers have expressed that they do not want to repeat history by becoming part of the experiment that reveals the harms of secondhand exposure to electronic cigarettes. [00:32:44] Speaker 00: We have done that, and passengers have very reasonable concerns about the health effects and about the direct effects of inhaling the aerosol from electronic cigarettes. [00:32:56] Speaker 01: Well, the answer to that, they would say, is Congress should pass a statute then. [00:33:01] Speaker 00: Congress did pass a statute. [00:33:03] Speaker 01: They considered specific e-cigarette statutes and have not enacted those, correct? [00:33:09] Speaker 00: There are legislative there were legislative proposals your honor and on those we have two responses the I mean assuming that we can discern anything from Congress's decision not to enact a statute It's just as likely that Congress believed that electronic cigarettes were already encompassed within the statutory smoking prohibition No, I was just taking in your point [00:33:32] Speaker 01: I'm whether something's safe, but they don't want to be part of the experiment. [00:33:37] Speaker 01: But usually, as Judge Randolph says, you don't regulate something until there's some indication of harm. [00:33:44] Speaker 01: And the statutory term here is safe. [00:33:48] Speaker 01: And if there's no indication of harm yet, [00:33:50] Speaker 00: We're actually relying, Your Honor, on the adequate provision, the adequate part of that statute, and that's what this court relied on in action. [00:33:57] Speaker 00: In smoking on the health, it said that the agency can regulate the quality of service or the quality of interstate air transportation. [00:34:06] Speaker 00: And contrary to Commissioner's argument, there is no meaningful distinction between those phrases. [00:34:13] Speaker 00: the language change was part of a 1994 recodification of the statute without substantive change and this court upheld the board's authority to regulate smoking based on passenger discomfort where evidence showed that there was no harm to passengers based on secondhand smoke. [00:34:34] Speaker 00: adequate allows you to regulate anything, even if this court held that the board has brought authority to regulate to ensure quality service as a means of ensuring adequate service better safe than sorry principles. [00:34:53] Speaker 00: The agency should not have to wait until a passenger develops cancer from sitting next to a user of e-cigarettes, flight after flight. [00:35:04] Speaker 00: The agency has taken a precautionary approach. [00:35:06] Speaker 00: We'd urge this court to uphold that and to deny the petitions for review. [00:35:14] Speaker 01: Okay, thank you. [00:35:15] Speaker 00: Thank you. [00:35:24] Speaker 02: Your Honor, just a few very quick points. [00:35:28] Speaker 02: The CAB, one year after the action on smoking and health decision, noted in a policy statement on smoking that the board's judgment, justifying a total ban, to justify a total ban that smoking aboard aircraft under the present rules, you would need a showing of significantly damaging the health of non-smokers. [00:35:50] Speaker 02: That certainly exists for smoking. [00:35:53] Speaker 02: there is no showing of significant irritation, significant potential for irritation when it comes to e-cigarettes. [00:35:59] Speaker 01: But if you combine just the statutory term adequate with our precedent in action on smoking and health, that's a precedent that gives them a lot of room. [00:36:12] Speaker 02: Yeah, it gives them a lot of room. [00:36:13] Speaker 02: It does not give them unlimited room. [00:36:15] Speaker 02: And as this court noted, [00:36:20] Speaker 02: Validity of a regulation under that provision will be sustained so long as it is reasonably related to the purposes of the enabling legislation. [00:36:28] Speaker 02: We would dispute the notion that this is a reasonable relationship between the possibility of someone on some airplane using an e-cigarette and creating a significant impact on someone else. [00:36:44] Speaker 02: That's my first point. [00:36:45] Speaker 01: Secondly, on this notion that it's just discomfort, [00:36:48] Speaker 01: And there's people who say, I don't like it. [00:36:51] Speaker 01: It makes me uncomfortable. [00:36:53] Speaker 01: And you have this very expansive statutory term, adequate. [00:36:57] Speaker 01: And you have our precedent in the case. [00:37:01] Speaker 01: Why isn't that good enough? [00:37:02] Speaker 02: Because adequate does not mean superlative. [00:37:06] Speaker 02: Adequate does not mean the most comfortable. [00:37:08] Speaker 02: Adequate can still allow room for the fact that certain interactions occur between passengers, which are not a function of DOT to regulate. [00:37:18] Speaker 01: I mean, act with such a potentially expansive term, and you might have, you know, separate arguments about Congress is unwise to give that kind of broad delegation to agencies, but it's a very expansive term. [00:37:31] Speaker 02: We would submit that if the FAA began a rulemaking on whether people who drink too much on a plane start exuding certain chemicals in their bodies that bothers other folks? [00:37:42] Speaker 01: That definitely happens. [00:37:45] Speaker 02: But I believe it should not happen as a rulemaker. [00:37:49] Speaker 02: Secondly, on the statutory question, the notion that we now have a new type of smoking that these cigarettes that function like cigarettes and that are used like cigarettes, that sounds very much like a claim that these are the functional equivalents of cigarettes. [00:38:02] Speaker 02: The Supreme Court in its 1986 ruling in the Board of Governors of the Federal Reserve versus Dominion Financial [00:38:09] Speaker 02: held that a statute that gives authority to regulate banks does not give authority to regulate the functional equivalent of banks. [00:38:19] Speaker 02: There is a distinction between the two. [00:38:21] Speaker 02: Congress legislated on the first, not on the second. [00:38:24] Speaker 02: You should not have that expansion. [00:38:29] Speaker 01: Let me phrase it this way. [00:38:30] Speaker 01: You're not challenging any foreign ban, are you? [00:38:33] Speaker 01: The ban is applied to foreign flights? [00:38:37] Speaker ?: No. [00:38:37] Speaker 04: Finally, if this court is inclined to a statute on the foreign carriers, if the foreign government objects to the ban on e-cigarettes, then it doesn't apply to flights into the United States. [00:38:53] Speaker 04: Is that correct? [00:38:54] Speaker 02: I believe there is some mechanism for working out of objections like that. [00:38:59] Speaker 02: I'm not sure just what the details of it are. [00:39:01] Speaker 02: But let me stress, if this court is inclined to accept the safe and adequate provision as a sufficient basis for this ban, we would urge you to nonetheless go on and rule that the agency's approach to the statutory question is invalid. [00:39:17] Speaker 02: Which, to the smoking question? [00:39:18] Speaker 02: To the smoking question. [00:39:19] Speaker 02: Why would we do that? [00:39:21] Speaker 02: When you have an agency can always change a discretionary regulation on the basis of new facts. [00:39:27] Speaker 02: Here you've got an agency that is basing a good part of what it's doing on its interpretation of a statute. [00:39:34] Speaker 02: And getting an agency to change a statutory interpretation on the basis of new facts is much, much more difficult if not impossible. [00:39:41] Speaker 01: But suppose we said hypothetically we uphold it on the basis of the adequate safe and adequate provision. [00:39:48] Speaker 01: We don't pass judgment one way or another on the [00:39:51] Speaker 01: definition of smoking. [00:39:55] Speaker 02: Then there's a problem if CASA or CEI or some other group that favors the opportunities to use these cigarettes were to approach FAA DOT with new studies which make an even stronger case for the safety of these cigarette use to bystanders. [00:40:13] Speaker 04: Yeah, but the other problem for DOT is that if we did what Judge Cavanaugh suggests [00:40:20] Speaker 04: then the ban on these cigarettes would apply only to domestic flights. [00:40:27] Speaker 02: Well, if that's the situation and it cannot be resolved, I think it rests in Congress's hands. [00:40:31] Speaker 02: But right now, DOT's interpretation of the no smoking provision stands really as an absolute bar to any rulemaking petition, to any reconsideration of the facts. [00:40:44] Speaker 02: And that sort of violence to language is simply that should not pass muster in this court. [00:40:49] Speaker 01: Okay. [00:40:50] Speaker 01: Thank you very much. [00:40:51] Speaker 01: The case is submitted.