Tobacco Documents Online

k ;c . \ C THE TOBACCO INSTITUTE 1776 K STREET. NORTHWESTi%VASH?`GTO:V. D.C. 20006 202/457-4800 August 17, 1979 HORACE R. KORtiEGAY President 202/457-4830 Docket Section Civil Aeronautics Board Washington, D.C. 20428 Re: EDR-377, Docket No. 29044, Dated May 16, 1979 Dear Sirs: During the past six years, the Civil Aeronautics Board has proposed and adopted a series of increasingly restrictive regulations to govern the personal behavior of ._ passengers who wish to smoke tobacco products aboard com- mercial aircraft. Only a few months ago, following more than two years of.administrative activity, the Board amended its smoking regulations in a manner that severely limits the rights of airline passengers who smoke. 44 Fed. Reg. 5,071 (January 25, 1979), amending 14 C.F.R. Part 252. The pro- posals to which these comments are directed would increase substantially the imbalance in the Board's present smoking regulations, which already heavily favor nonsmokers at the expense of smokers. The Board's authority to restrict smoking on com- mercial aircraft has been subject, from the outset, to serious question. One of the ironies of the present pro- posals is that they would deepen the Board's involvement in

k Docket Section August 17, 1979 Page Two this area despite Congress' recent determination to reduce the extent of federal regulation of airlines. This irony is only compounded by the Board's statement, in announcing the proposals, that it is too early to tell whether the regula- tions already in effect "will be sufficient to protect non- smokers from unreasonable exposure to tobacco smoke." These comments are being submitted by The Tobacco Institute on behalf of major manufacturers of cigarettes, as well as a number of manufacturers of other tobacco products. For the reasons summarized below, the Institute believes that there is no basis for the Board's adoption of any of the pending proposals. 1. The Pending Proposals Would Take the Board Well Beyond the Limits of Its Statutory Authority Even before passage of the Airline Deregulation Act of 1978, the Board's efforts to limit smoking by airline passengers were vulnerable to legal challenge. A memorandum prepared by the Board's Deputy General Counsel in May 1978 cautioned that "the legal status of Board action in this area is not clear, since * * * the relevant statutory provisions are broad and vague, and there is obviously reason to doubt that Congress had action [like that contem- plated by the present proposals] in mind when it enacted 92 Stat. 1705-1754; 49 U.S.C. § 1301 et sea. (1978).

k r Docket Section August 17, 1979 Page Three them." An earlier memorandum from the Bureau of Pricing and Domestic Aviation concluded similarly that "the question of the Board's jurisdiction to promulgate rules regulating passenger smoking is a toss-up." These conclusions have been echoed in many of the public comments that have been filed during the past six years on Board proposals to restrict smoking by airline passengers. The Board has chosen thus far to ignore the legal impediments to its regulation of smoking by airline passen- gers. Until recently, air carriers and their passengers have been committed to a course of cooperation and have made good faith efforts to comply with the smoking regulations despite the Board's lack of authority in this area. But the January 1979 amendments to the regulations already have precipitated at least one judicial challenge, Diefenthal v. Civil Aeronautics Board, et al., filed May 14, 1979, in the United States District Court for the Eastern District of Louisiana. The present proposals, which are even more complex and intrusive than the existing regulations, are likely to result in additional legal challenges if adopted by the Board. Such challenges are likely to be successful. From the beginning, the Board has relied upon three statutory provisions to support its smoking regulations

1 . . c c Docket Section August 17, 1979 Page Four 204(a), 404(a) and 407 of the Federal Aviation Act of 1953. None of these provisions is apposite. Section 204(a) is the source of the Board's general authority to implement other provisions of the statute; standing alone, Section 204(a) does not constitute an independent substantive basis for rulemaking. Deutsche Lufthansa Aktiengesellschaft v. C.A.B., 479 F.2d 912, 918 (D.C. Cir. 1973). Section 407 relates only to reporting requirements that the Board may impose on air carriers, and has nothing whatever to do with restrictions on passenger activities or airline seating arrangements. The only provision that is even conceivably rele- vant is Section 404(a), which permits the Board to assure that airlines offer their passengers "adequate service" and follow "just and reasonable" practices. But that language has never been construed as an unlimited license for federal intrusion into the operations of airlines; indeed, the Board itself repeatedly has described its authority under Section 404(a) in carefully limited terms. In Pan American World Airways, Inc., Order 75-6-101, p. 5, for example, the Board stated that "(aldequate service represents a minimum quality and quantity necessary to meet the needs of travelers and shippers in particular markets." See also Washington- ~ . Baltimore Adequacy of Service, 30 C.A.B. 1215, 1222 (1960). Q .~ . N b */ 49 U.S.C. §§ 1324'(a), 1374 (a) and 1377 (1976). C.~

C Docket Section August 17, 1979 Page Five Obviously, the Board's authority to assure service of "a minimum quality" for all passengers cannot justify rules that satisfy even the most excessive demands of a small minority of antismokers while substantially inconveniencing those passengers who desire to smoke. Moreover, the general authority conferred by Section 404(a) is subject to specific limitations, including a prohibition against interference by the Board with mana- gerial decisions by the airlines concerning passenger conven- ience and comfort. Pursuant to Section 401(e)(4) of the Federal Aviation Act, 49 U.S.C. S 1371(e)(4) (1976), the Board may not -- "restrict the right of an air carrier to add to or change schedules, equipment, accommodations, and facilities for per- forming the authorized transportation and service as the development of the business and the demands of the public shall require." The clear intent of this provision is to encourage competi- tion as the means of improving and refining the quality of services provided to air passengers, an intent directly contravened by the Board's imposition of increasingly detailed and rigid restrictions on smoking. The significance of this limitation on the Board's authority was underscored by the United States Court of Appeals for the District of Columbia Circuit in Continental ~ . Air Lines v. C.A.B., 522 F.2d 107 (D.C. Cir. 1974). That ~ ~ N case involved a challenge to the Board's implementation of W O

1 Docket Section August 17, 1979 Page Six fare differentials that effectively penalized Continental Air Line's choice of seating arrangements in its aircraft. The court disapproved the Board's action as an indirect attempt to regulate aircraft accommodations in violation of Section 401(e)(4). As the court pointed out in Continental: "The Board cannot frustrate the Congressional purpose behind section 401(e)(4) by indirectly regulating accommodations through other actions when it cannot do so directly." 522 F.2d at 115. It is noteworthy that the court in Continental invalidated the Board's action even though implementation of airline fares was clearly within the Board's general authority to issue economic regulations. By contrast, the Board's existing and proposed smoking regulations not only limit the discretion of airline management with respect to passenger accommodations, but do so without furthering any legitimate statutory purpose within the Board's jurisdiction. The Board's existing and proposed smoking regula- tions also conflict with Section 404(b) of the Federal Avia- tion Act, 49 U.S.C. S 1374(b) (1976), which broadly proscribes "unjust" and "unreasonable" discrimination against individual passengers or groups of passengers. Section 404(b) provides in relevant part that -- "No air carrier or foreign air shall * * * subject any particular carrier person O ~ ~ * * * in air transportation to any unjust . N discrimination or any undue or unreasonable W prejudice or disadvantage * * *." N

4 C Docket Section August 17, 1979 Page Seven This provision has been held to ban all forms of "unjust" or "unreasonable" discrimination, including those granting */ priorities for boarding on overbooked flights and resulting **/ in fare differentials. As described in more detail below, the unjust and unreasonable discrimination against smoking passengers contained in the Board's present smoking regulations would be increased significantly by the proposals at issue in this proceeding. See discussion at pages 11-19 infra. This disparity of treatment is particularly disturbing in view of the absence of a substantial and rational basis supporting the Board's regulatory efforts with regard to smoking. I Any doubt as to the unauthorized nature of the Board's efforts to regulate smoking by airline passengers was dispelled by the Airline Deregulation Act of 1978. That law was adopted in response to overwhelming dissatisfaction with government regulation of the airline industry, and in the belief that "air transportation will be more likely to expand and prosper if the heavy hand of CAB economic regula- tion is removed from the creative hand of carrier management. S. Rep. No. 95-631, 95th Cong., 2d Sess. 5 (1978). Thus, Congress undertook in the Airline Deregulation Act to limit m O * W / E.g., Archibald v. Pan American World Airways, Inc., ~ 460 F.2d 14 (9th Cir. 1972). N ~ **/ E.g., Transcontinental Bus System, Inc. v. C.A.B., 383 F.2d 466 (5th Cir. 1967), cert. denied, 390 U.S. N 920 (1968).

k c Docket Section August 17, 1979 Page Eight the Board's oversight role vis-a-vis the airline industry. This congressional policy is expressed in Section 102(a) of the Act, 49 U.S.C. 5 1302(a) (1978), which requires the I Board to place "maximum reliance on competitive market forces" and to encourage an air transportation system that relies on "competition to provide efficiency, innovation, and low prices and to determine the varietv, quality and price of air transportation." (Emphasis supplied.) It is disturbing that, just as Congress has reaffirmed that the Board is not to interfere with managerial discretion in providing service to airline passengers, the Board is attempting to tighten its regulation of airline passenger accommodations by proposing complex and intrusive restric- tions on passenger smoking. In a memorandum to the Board dated May 22, 1978, the Director of the Board's Office of the Consumer Advocate stated that "the real question [with respect to smoking restrictions] is to what extent is the Board prepared to impose its own judgment as to the comfort and convenience of passengers over the managerial discretion of the carriers." The language and the policy of the Airline Deregulation Act should make the answer to that question clear. Further involvement by the Board in an area in which its actions are O W both unsupported by and in conflict with its statutory ~ N authority is wholly unwarranted. W W

Docket Section August 17, 1979 Page Nine 2. None of the Current Proposals for More Restrictive Smoking Regulations Is Supported by Sound Policy Considerations or by Objective Facts I* The current proposals also should be rejected because they are unsupported by sound policy considerations or by objective facts. As the Board is well aware, smoking aboard aircraft is at best an issue of relative passenger comfort and convenience, not safety. After an extensive study performed in conjunction with the Department of Health,' Education and Welfare, the Federal Aviation Administration, which has jurisdiction over aircraft safety issues, concluded that smoking by airline passengers does not present a hazard */ to the health of nonsmoking passengers. No credible evidence has ever been presented to change the conclusion reached by that study. When scrutinized, as they must be, in terms of passenger comfort and convenience, the proposed regulations fail to pass muster. If nonsmoking passengers have a "right" to "adequate service," enforceable by the Board, so do smoking passengers. The Board's existing regulations already are heavily weighted in favor of nonsmokers -- nonsmokers are guaranteed seats in no-smoking sections, but smokers */ "Health Aspects of Smoking in Transport Aircraft," December 1971; see 38 Fed. Reg. 12,207 (May 10, 1973) and 38 Fed. Reg. 19,048 (July 17, 1973). k

k C Docket Section August 17, 1979 Page Ten cannot be assured of seats in smoking sections; smokers are generally relegated to the noisier and less convenient and accessible rear section of the aircraft; and cigar and pipe smokers are "segregated" even within smoking sections. The additional restrictions set forth in the current proposals would heighten this imbalance, despite the fact that only a few months ago the Board increased its restrictions on smoking and has admitted that there is insufficient experi- ence under the current regulations to establish whether further changes are needed. Insofar as smoking regulations are concerned, "adequate service" appears to have been interpreted by the Board to mean optimal satisfaction for a small group of antismoking passengers at the expense of all other airline passengers. Such an interpretation is particularly inappropriate in view of the fact that the vast majority of airline passengers either smoke or do not object to smoking. A survey conducted by the Airline Passengers Association in June 1977 revealed that passengers were overwhelmingly satisfied with the smoking regulations that existed at that time. Indeed, the survey found that more passengers are irritated by crying infants than by tobacco smoke. A substantial number of the respond- ents ents even indicated that they would like to see passengers ~ with infants segregated in one section of the aircraft. So N )n far as we are aware, the Board has never proposed the creatiorW L7