FILE - In this Friday, Oct. 4, 2019 file photo, a man using an electronic cigarette exhales in Mayfield Heights, Ohio. A judge has cleared the way for Montana to temporarily ban the sale of flavored e-cigarettes and other flavored vaping products. State officials say they plan to implement the ban Wednesday, Dec. 18, 2019.
Tony Dejak / AP
The Oregon Supreme Court has upheld a Washington County ordinance banning the sale of flavored tobacco products, including menthol cigarettes, vapes and hookahs.
In a unanimous opinion Thursday, the court found that Oregon law regulating retail tobacco sales doesn’t preempt counties from passing more stringent rules.
Under state and federal law, you have to be 21 or older to buy tobacco or synthetic nicotine products like vapes. But groups that campaign against smoking say that products are marketed at young people regardless.
In 2021, the Washington County Board of Commissioners passed an ordinance to combat those marketing tactics. It bans flavored tobacco and nicotine products, prohibits coupons or discounts for tobacco and synthetic nicotine and bans sales from kiosks, vehicles and vending machines. It was later referred to the ballot and the measure was approved by a majority of voters.
Shortly before Washington County passed its ordinance, the Oregon Legislature passed a law requiring, for the first time, that retailers selling tobacco products be licensed with the state.
In 2022, the owner of several vape shops, and the owner of a hookah cafe sued Washington County. The retailers argued that the state’s licensing law prevented the county from passing separate regulations.
A trial court judge sided with the retailers and stopped the county from enforcing its ordinance. Washington County appealed and the appeals court reversed the decision. Which was again appealed to the state Supreme Court.
In its ruling, the Oregon Supreme Court found that Washington County’s ordinance was compatible with state law, and that the legislature likely intended to allow, not prohibit, additional county regulation of cigarettes and vapes.
The decision comes amid changes at the federal level. Earlier this week, the Food and Drug Administration approved the sale of two fruit-flavored vapes for adult use.
Multnomah County also passed a ban on flavored vapes and tobacco products in 2022. That ordinance was set to go into effect in 2024, but hasn’t been enforced due to a similar legal challenge from tobacco retailers.
Last year, an appeals court upheld Multnomah County’s ban. The plaintiffs in that case have filed a petition asking the state Supreme Court to review that decision. The court has not decided on that petition.
