Over the past few years, at least five states and several hundred localities have passed, or attempted to pass, laws banning flavored tobacco products. There have been a number of challenges to those laws—few of which have been successful. In a recent ruling, the Washington County Circuit Court handed a win to businesses challenging a local ordinance (the Ordinance) seeking to impose a ban on the sale of flavored tobacco products.

The case is Schwartz, et al. v. Washington County, No. 22CV04836 (Wash. Cnty.). The defendant, Washington County (the County), has already stated that it disagrees with “the Court’s ruling and [it is] considering options for an appeal. In the meantime, the preliminary injunction from July 2022 will remain in effect, keeping Ordinance 878 on hold.” While the circuit court decision represents a notable win for the businesses involved, the fate of the Ordinance may be determined by a higher court.

Background

In 2021, Oregon passed a law requiring retailers to obtain licenses to sell tobacco and nicotine products, including those that are flavored. Later that year, the County enacted the Ordinance, prohibiting the sale, offer to sale, or distribution of flavored tobacco and synthetic nicotine products, for the stated purpose of protecting public health and preventing youth access. After the County enacted the Ordinance, a petition was signed to place a referendum on the ballot at the next election to consider repealing the Ordinance. In the meantime, several businesses filed a lawsuit in the Washington County Circuit Court against the County in February 2022. In May 2022, voters decided to uphold the Ordinance. In the ongoing litigation, however, the Court granted the business’ request for a preliminary injunction, effectively prohibiting enforcement of the Ordinance until the case was decided.

The Ruling

In its recent ruling, the Court boiled down the main legal issue to be decided: whether a state law providing localities the authority to enforce standards for regulating the retail sale of tobacco products included the power to also ban the sale of those products. The relevant state law allows each local public health authority to:

Enforce, pursuant to an ordinance enacted by the governing body of the local public health authority, standards for regulating the retail sale of tobacco products and inhalant delivery systems for purposes related to public health and safety in addition to the standards described in paragraph (b) of this subsection, including qualifications for engaging in the retail sale of tobacco products or inhalant delivery systems that are in addition to the qualifications described in ORS 431A.198;

Or. Rev. Stat. Ann. § 431A.218(2)(a) (emphasis added). The standards in paragraph (b) and the qualifications in § 431A.198 include those imposed by state law or rule relating to the regulation of the retail sale of tobacco products and inhalant delivery systems and retail licenses to be issued by the Department of Revenue. See id., § 431A.218(2)(b); Or. Rev. Stat. Ann. § 431A.198.

Interpreting these provisions, the Court reasoned that the County sought not to enforce standards provided for by state law, but rather sought to “delete[] these standards and qualifications by enacting a blanket prohibition on retail sale of flavored tobacco and nicotine products….” The County conceded to the Court that it did not have the power to prohibit the sale of all tobacco products, whether flavored or not. The Court latched on to this statement to reason that if the County lacked the power under state law to ban all tobacco products, it naturally follows that the same regulatory scheme should not allow it to ban the sale of certain products. Thus, the Court concluded that “the decision to disallow licensed retail sale of such products must come from the state, not county by county.”

The ruling is a win for local Washington County businesses that sell tobacco and nicotine products, and it is also notable from a broader perspective.  As this blog reported, earlier this year a federal court permanently enjoined the City of Philadelphia’s flavored tobacco ban, holding that Pennsylvania law did not authorize the ordinance. As with the Philadelphia decision, the Washington County decision was based on the interpretation of a specific state law, and it did not address any potential state or federal constitutional arguments. Given the limited scope of the issues before the Court, it may be difficult to extend the Court’s reasoning to other jurisdictions; however, at the very least, it serves as a reminder for businesses confronting local flavor bans, and their counsel, to consider the extent of authority (if any) that the state has granted a locality to ban or regulate the sale of flavored tobacco products.