The Tobaccoless Tobacco Product: DOT Seeks In-Flight E-Cig Ban
The Department of Transportation has proposed banning "the use of electronic cigarettes on all aircraft in scheduled passenger interstate, intrastate and foreign air transportation." The proposed rule states that "We see no reason to treat electronic cigarettes any differently than traditional cigarettes" even though e-cigarettes involve neither combustion nor tobacco.

The primary reason DOT provides for the proposed ban is that "We are unaware of sufficient studies on the health impact on third parties from these vapors to conclude that they would not negatively impact the air quality within the aircraft and/or increase the risk of adverse health effects on passengers and crew members."

Thus, DOT is saying that they want e-cigarettes banned in planes because the devices have not been proven not to be harmful according to unstated criteria. There is a Wikipedia entry discussing the type of logic used by the Department, Argument From Ignorance. As Wikipedia explains,

"Argument from ignorance, also known as argumentum ad ignorantiam or 'appeal to ignorance', is a fallacy in informal logic. It asserts that a proposition is true because it has not been proven false (or vice versa)." The definition is applicable to DOT's decision to propose a ban on e-cigarettes without demonstrating that there is a problem in need of regulatory action.

The DOT Notice of Proposed Rulemaking (NPRM) appears to contradict one of the basic regulatory principles contained in President Obama's Executive Order 13563 which states that agency should, "propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify)." In this case, DOT has not made the case that the ban would have any benefits at all.

The NPRM raises a question for the entire regulated community; does the rule represent a shift in regulatory philosophy that will be applied to other products and practices?

Comments are due to DOT by November 14th.

See DOT Proposed E-Cigarette Ban