Tobacco and vape retailers have filed a lawsuit designed to stop Multnomah County from enacting its ban on flavored tobacco and nicotine products next year, marking the latest in a series of battles between the local tobacco industry and government regulators over the future of flavored tobacco sales in the state.
The store Division Vapor and the 21+ Tobacco and Vapor Retail Association of Oregon (TVRA), an association comprised of roughly 40 member stores and several distributors, have sued the county in circuit court in an effort to overturn the ban passed unanimously by the Multnomah County commission in December.
Tobacco retailers represented by the association won a victory last fall when a circuit judge struck down a similar ban on flavored tobacco and nicotine products in Washington County on the basis that the county is able to regulate the sale of the products but not ban them entirely due to the tenants of Senate Bill 587, which modified state rules around the sale of tobacco.
The interpretation of that bill, passed in the legislature and signed into law in 2021, is of critical importance in the Multnomah County suit.
Richard Burke, the executive director of TVRA, said that his association’s argument against the Multnomah County ordinance rests on the same logic—that while the bill gives the county the right to regulate the sale of products, it cannot ban those sales outright as it “specifically authorizes the licensed sale of tobacco products and inhalant delivery systems statewide.”
“This has already been argued in Washington County, and we won in court,” Burke said.
Supporters of the ordinances and the counties themselves see the situation differently. According to Jamie Dunphy, Oregon government relations director for the American Cancer Society Cancer Action Network, the state law does not say anywhere that a local jurisdiction is not allowed to further regulate the sale of tobacco products.
“The statewide tobacco retail law calls out smoke-free pharmacies—that a local jurisdiction could not mandate tobacco-free pharmacies,” he said. “But it says nothing about regulating the products or the positioning or the coupons or the deals.”
A spokesperson for Multnomah County said that the county does not comment on ongoing litigation.
There’s another issue at play as well: unlike Washington County, Multnomah County already had its own tobacco retail license in place before the passage of Senate Bill 587, which states that counties could continue to operate pre-existing licensure systems after the implementation of the bill. With the pre-existing licensure program in place, Multnomah County may have more legal control over the sale of tobacco products compared to Washington County.
But TVRA is seeking to have the Multnomah County system thrown out as well, arguing that the county is not allowed to run its own licensure scheme.
“We’re arguing that the Multnomah County licensing system itself is invalid, because it was not properly established,” Burke said.
According to Burke, when Senate Bill 587 was passed, it said that counties could keep their licensure systems if they had been established by January 1, 2021 and required the retail businesses not be located in areas zoned for residential use. The plaintiffs in the suit are arguing that the Multnomah County program did not have such a requirement.
Dunphy called that argument “preposterous.”
“I can’t think of a single example in this state where a law is implemented on a statewide basis clearly, explicitly grandfathers in existing local control, and suddenly the state law would have supremacy over it,” Dunphy said. “That’s just not how those things work. That’s just a basic misunderstanding of Oregon home rule law.”
Dunphy said that Washington County is preparing to appeal the decision striking down its ban in the coming weeks as well.
But the lawsuits may soon be moot. The state legislature is currently considering a bill that would ban flavored tobacco products statewide, taking the matter out of the hands of local jurisdictions.
House Bill 3090, which has bipartisan sponsors, would prohibit the distribution and sale of all inhalant delivery systems and flavored tobacco products in the state—a ban in line with similar bans passed in states like Massachusetts, California, and New York.
The push for a statewide ban on flavored tobacco products in Oregon comes as part of a nationwide push to curb youth smoking and try to prevent youth nicotine addiction as the rate of tobacco use among children has increased significantly in recent years.
Tobacco remains the leading cause of preventable death in Oregon and, according to anti-flavored tobacco lobby Flavors Hook Oregon Kids, four out of five children in the state who’ve ever used tobacco started with a flavored product. To Dunphy, that’s not a coincidence.
“It’s marketing,” Dunphy said. “It’s really effective marketing. They’re making flavors that are literally named after breakfast cereals. They are naming flavors after candy bars and directly trying to make these products appeal to children.”
Minor possession of tobacco is not a crime in the state, but if this bill passes, the sale of flavored products would be. Multnomah County officials have stressed that the county ban on flavored products aims to only punish retailers who violate the ban, not individual customers.
While TVRA vigorously opposes the idea of a total ban, Burke said the organization is pushing several bills in the legislature that he believes would help keep tobacco products out of the hands of minors, like carding all customers at retail stores and using the state’s approved identification card scanner to check for fake IDs.
The lawsuit in Multnomah County notes that the sale of flavored tobacco products to people under the age of 21 years is already banned, though Dunphy said that many minors who use flavored tobacco are not buying the products themselves but relying on other people like relatives to buy those products for them legally.
If the legislature does decide to ban flavored tobacco statewide, Burke argues it will be dealing with a rash of unintended consequences.
“Demand for flavored tobacco and vaping products isn’t going to disappear because of a ban on sales any more than marijuana disappeared when marijuana was illegal,” Burke said. “Somebody is going to fill that void, and it’s going to be the black market—and the black market is going to bring with it dangerous, illicit products.”
Dunphy said proponents of a ban are not overly concerned about an emergent illegal market for flavored tobacco products, particularly given that the state is already working to curb illegal sales of those products, and that the rates of use have increased in recent years with the rise in popularity of legally available products.
“I don’t believe that there’s going to be guys in trench coats trying to sell churro flavored vapes downtown,” Dunphy said. “That’s not my concern. My concern is just trying to make it so it is less convenient for thousands of new children to start deadly addictions.”