Effect of No-Smoking Law Aimed at Airlines Disputed by Industry

Declaring that only the federal government can regulate the airlines, a key industry spokesman said Monday that the airlines will not be bound by a new California law banning smoking on flights that both begin and end within the state.

Alan Wayne, legislative coordinator for the Air Transport Assn., said his group will be advising airlines not to implement the no-smoking rule after the law takes effect Jan. 1. “It is clear that federal law preempts state regulation of service on board aircraft,” Wayne said.

The controversial bill is also intended to apply to bus and train trips. Arthur Lloyd, a spokesman for Amtrak, said the federal passenger train corporation believes that it, like the airlines, will be exempt from the new law. Bus industry spokesmen could not be reached for comment.

The measure also requires that signs prohibiting smoking be posted in all planes and vehicles used for public transportation and requires that 75% of the waiting space in airports and public transit centers be set aside for nonsmokers.

The industry position comes on the heels of Gov. George Deukmejian’s statement that the bill, which he signed into law on Sunday, may not be enforceable.

And a top aide to Atty. Gen. John K. Van de Kamp, the state’s chief law enforcement officer, said he believes that California does have the right to regulate smoking on board airlines. But he added that he is not sure whether the bill passed by the Legislature on Sept. 9 goes far enough to do that. The spokesman said the office is withholding a decision on whether to enforce the smoking ban until its review is completed.

As a result, airline passengers who object to smoking might have to go to court if they want the new law enforced after it takes effect. A spokeswoman for the American Cancer Society, which sponsored the legislation, said the organization is prepared to file suit, if necessary, to require that the law be enforced.

“Come Jan. 1, if smoking is still allowed on airlines, we will fight to have this thing implemented,” said Elizabeth Hite, a lobbyist for the cancer society in Sacramento.

Felice Tanenbaum, a top aide to the bill’s author, Sen. Nicholas Petris (D-Oakland), added, “There should be no smoking in public transportation in the state of California as of Jan. 1.”

Violations of the law--either by smokers ignoring the ban or airlines refusing to post signs--are to be infractions punishable by a $100 fine for the first offense up to a $500 fine for the third offense within one year.

Confusion over the pioneering legislation began Sunday when Deukmejian, in an unusual move, signed the bill but then wrote a letter to the Senate saying he did not believe that the measure would have much impact.

“I agree that it would be in the public’s interest to prohibit smoking on airplanes, buses and trains that originate and end their trips within California,” Deukmejian said in the letter. “However, I doubt that this bill will do anything more than codify into California law comprehensive national standards administered by the federal government.”

Wayne, of the Air Transport Assn., said Monday the association was “pleased that the governor has concurred” with the group’s interpretation of the new law.

“The ATA believes that current airline policies regarding smoking on board aircraft balance the needs of airline consumers and they are in concurrence with federal regulations,” Wayne said. “If these policies and regulations need to be revised, it must be done at the federal level in order that a unified national policy can be maintained.”

Deukmejian’s legal secretary, Vance Raye, said in an interview that he agrees with the industry position that federal law prevents the state from regulating the rates, routes or services of airlines, and that smoking can be considered a “service.” But Raye added that he believes the bill, as it was written, does not go far enough to force a legal confrontation over the issue of state and federal powers.

The key phrase in the bill says that it bans smoking on Amtrak trains and on airlines “except to the extent permitted by federal law.”

“The bill itself expresses an intent to accommodate federal law,” Ray said. “The legal issue is, what does federal law provide and permit?”

Steve White, chief assistant attorney general, said he has asked a deputy to review the new law because of the questions raised by the governor’s letter.

“We believe the state can regulate smoking on airlines,” White said. “The question at hand is whether the state has done that.”

White said the attorney general’s office will not decide what course to take in enforcing the law until it completes its review of the bill.

No matter what the outcome of that study, however, he said citizens could seek criminal prosecution of this law, like any other statute, by calling any law enforcement office in the state or, alternatively, by trying to obtain an injunction in civil court forcing the airlines to abide by the law.