An Oregon vape shop owner filed a complaint this month against the State of Oregon over rules that prohibit the packaging of vaping products in a manner that appeals to minors. The plaintiffs, Paul Bates and No Moke Daddy LLC, doing business as Division Vapor, allege that the Oregon Health Authority’s regulations’ standard of being packaged in a manner that is attractive to minors is “vague, incomprehensible, and overbroad” and hinders freedom of expression and the ability of adult consumers to make informed purchasing decisions by preventing otherwise accurate product descriptors in labeling. The regulations apply to inhalant delivery systems (defined by Oregon rules to exclude products such as shisha tobacco, cigars, and cigarettes), liquid nicotine containers, and non-nicotine liquid containers. This means that the rules even apply to nicotine-free e-liquid.
The rules provide that an inhalant delivery system is packaged in a manner that is attractive to minors based on the packaging presentation, shape, graphics, coloring or writing. In addition to banning the use of celebrities, mascots, athletes, cartoons, and commercially recognizable toys, sports equipment, and candy, the rules also prevent businesses from using the names of any fruit, candy, dessert, juice, soda, or alcoholic beverage. Earlier this year, the Oregon Health Authority added new rules which also forbid labels from including terms or descriptive words for flavors that purportedly appeal to minors such as “tart, tangy, sweet, cool, fire, ice, lit, spiked, poppin’, and juicy.” Other labeling elements and images may also be restricted if individual inspectors determine they meet the standard of being “likely to appeal to minors.” Oregon says the rules are necessary to protect children, but given the extensive nature of prohibited labeling elements, the law could have the effect of requiring virtually plain packaging for vaping products marketed in Oregon.
The lawsuit alleges that the extensive nature of prohibited labeling terms and elements enables Oregon to have “unfettered discretion” in interpreting the statutes and regulations, and subjects vaping businesses to a continued threat of penalties. The result of all this, according to the lawsuit, is that vendors are prevented from truthfully describing the vapor products they sell because they censor truthful, non-misleading speech about legal products. For example, under these rules, a vape shop is forbidden from using the word “strawberry” or a picture of a strawberry on the label of strawberry-flavored vaping liquids. Or, for existing labels, such flavoring descriptors must be revised or censored to hide such terms. For instance, Division Vapor currently covers prohibited images and words with labels that state “Censored OAR #333-015-0300.” Because selling vapor products to minors is illegal, and Division Vapor does not allow minors inside the store, the lawsuit alleges that the rules serve only to censor speech between adults about legal products.
The lawsuit was filed in the Oregon State Circuit Court in Multnomah County. By asking the court to declare the law underlying the rules unconstitutional, plaintiffs seek an injunction to prevent the Oregon Health Authority from enforcing these regulations. We will keep the industry updated on developments on this important issue.