Enforcement Begins Under Chicago’s Ban on Flavored Vaping Products

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On September 9, 2020, the City of Chicago passed an ordinance prohibiting the sale of flavored liquid nicotine products. The City has wasted no time enforcing the ordinance. At the end of January 2021, the City of Chicago filed a complaint against an e-cigarette seller for selling flavored liquid nicotine products to underage Chicagoans. Although the city has filed lawsuits against vape companies before, this suit is the first to enforce the recently passed ban on flavored liquid nicotine products in the city of Chicago.

The ordinance does three things:

  • Prohibits the sale or transfer of “any flavored liquid nicotine product.” Violators of Section 4-64-355 of the Municipal Code of Chicago will be subject to a fine between $1,000-$5,000 per offense. In addition to steep fines, licenses may be revoked or not renewed after a single offense.
  • Expansively defines “flavored liquid nicotine products.” Under Section 7-32-010, “any” product “that contains a constituent that impacts a characterizing flavor,” including menthol or mint, is considered a “flavored liquid nicotine product.” Any public statement or claim by the manufacturer that a liquid nicotine product has a flavor will establish that the product is flavored under the Code. However, a liquid nicotine product will not be considered “flavored” just because it “uses additives or flavorings.”
  • Bans retail tobacco dealers from displaying any flavored nicotine products. Any tobacco dealers who display flavored nicotine products violates Section 4-64-510 and will be fined $1,000-$5,000 per offense. Under the Code, each day that a violation continues is a separate offense.

The City of Chicago has already enacted an ordinance making it illegal to sell tobacco products to Chicago residents under 21 years old. In fact, the City of Chicago’s recent complaint also alleges defendants market tobacco products to minors. It cites the alleged ease of accessing defendants’ Facebook and YouTube pages without verification of age and access to defendants’ Instagram page and website by providing an age under 21. Additionally, when defendants acknowledge age restrictions, they allegedly do so only for minors under the age of 18 and not 21. For example, defendants’ website says “Must be 18 or older to purchase items for tobacco use.”

On September 9, 2020, the same day the flavored liquid nicotine ban was passed, Mayor Lori Lightfoot introduced a resolution to continue “to work on crafting and enacting legislation to ban the sale of all flavored tobacco products citywide, including menthol cigarettes.” Given her resolution, and the City of Chicago’s zeal in filing claims against tobacco companies, the tobacco industry can assume more legislation—and lawsuits—will be forthcoming in Chicago.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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