By: Joseph A. Petroski
On March 2, 2016, the U.S. Department of Transportation completed a final rulemaking to amend 14 C.F.R. Part 252. This regulation (Part 252) was first finalized in June of 2000, and it banned “smoking of tobacco products on air carriers.” The regulation applied, and still does apply, only to commercial flights that serve the general public, and does not apply to on-demand flights, or what one might think of as private jets or charter flights. By 2000, commercial airlines general forbade smoking on flights already, but the original Part 252 extended the smoking ban to any commercial airlines who had not yet totally banned smoking throughout the entire aircraft. After the original Part 252, there were no longer commercial airline flights with “smoking” and “non-smoking” sections.
Previously, vaporizing enthusiasts and their advocates clung tightly to the regulatory language in Part 252 that banned “smoking” on planes. People using vaporizers (“vapes” or “e-cigarettes) do not inhale or exhale smoke. In fact, there is no combustion at any level during a session of vaporization. Still, upon exhalation, there can be large clouds of vapor that resemble smoke to some people.
This final rule making by the Department of Transportation would expressly ban any type of e-cigarette use with comprehensive language expressly stating “Smoking means the use of a tobacco product, electronic cigarettes whether or not they are a tobacco product, or similar products that produce a smoke, mist, vapor, or aerosol, with the exception of [ medical products].” This language in the “Definitions” section of Part 252 therefore extends the enforcement fines to vaping violators of the Regulation.
Those invested in the “vaping” industry likely evaluate the business implications of 14 CFR 252 (2016) to equal a negligible loss. The industry has enjoyed massive growth over the past few years, and while this final ruling is not a “win” for them, almost all airlines had already banned vaping aboard the aircraft before this final rule making was made, which makes sense. The tight space of on airplane cabin would directly subject other passengers to the vapors created by electronic cigarettes without the consent of those passengers. A more interesting question arises when it comes to airport bans of vaping. Some airports, like Reagan National Airport in Washington, D.C., allow vaping within the airport, while other airports don’t. There is more at stake here as consumers of vaping products might like to puff on them while waiting for their flights, whereas it is probably understood by most consumers of vaping products that using them in a crowded and tight space with strangers, like an airplane cabin, is considered a breach of common courtesy.
 14 CFR 252.3 (2016)
 14 C.F.R. 252.1 (2000).
 See 14 C.F. 252.2 (2000).
 14 C.F.R. 252.3, 4. (2000).
 Merrit Kennedy, No, You Can’t Vape on Commercial Flights, Transportation Department Says, Nat’l Pub. Radio News, Mar. 3, 2016.
 14 CFR 252.3 (2016),
 See id.