Over the last decade, hundreds of localities have passed ordinances restricting or prohibiting the sale of some or all types of tobacco products. Some of these ordinances have been challenged in court, but, in most cases, the localities have prevailed. In this case, a group of retailers (the Retailers), sued Multnomah County, Oregon (the County) in January 2023 alleging that the County’s flavored tobacco product ban was unlawful. Earlier this month, consistent with the overall trend, the court ruled against the Retailers and upheld the County’s flavor ban.
In December 2022, the County passed an ordinance that prohibits any tobacco retailer from making available flavored tobacco products, including any derived from tobacco or nicotine whether synthetic or natural (the Flavor Ban). The Retailers sued the County alleging that the Flavor Ban was unlawful based on two main claims: (1) the Flavor Ban is preempted by a state tobacco product law regulating the sale of all types of tobacco products and inhalant delivery systems (also known as electronic nicotine delivery systems), but not prohibiting the sale of any flavored tobacco products (the State Tobacco Law); and (2) the Flavor Ban violates the Oregon Constitution.
Under the Oregon Constitution, voters have the right to adopt county charters, or home rule charters, that authorize counties to govern on matters of county concern. Home rule charters outline how county governments will be organized, the powers county governments will have, and administrative procedures the county government will follow. The County adopted a home rule charter.
The Retailers’ First Claim
With respect to the first claim, the Retailers’ arguments primarily relied on interpreting two key sections of the State Tobacco Law quoted below.
(2) Each local public health authority may:
(a) 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 [imposing retail licensing requirements];
(A) Administer and enforce standards established by state law or rule relating to the regulation of the retail sale of tobacco products and inhalant delivery systems for purposes related to public health and safety if the local public health authority and the Oregon Health Authority enter into an agreement pursuant to ORS 190.110 [Authority of units of local government and state agencies to cooperate]; or
(B) Perform the duties described in this section in accordance with ORS 431.413(2) or (3) [Powers and duties of local public health authorities] …
ORS 431A.218; see also ORS 431A.218(c) and ORS 431.003(5) (defining “local public health authority” to include county government).
A city or local public health authority that, on or before January 1, 2021, and pursuant to an ordinance adopted by the governing body of the city or local public health authority, enforced standards described in ORS 431A.218 (Local regulation) (2)(a) and required that a person that makes retail sales of tobacco products or inhalant delivery systems in an area subject to the jurisdiction of the city or local public health authority hold a license or other authorization issued by the city or local public health authority may continue to enforce the standards and require the license or other authorization on and after January 1, 2022.
The Retailers interpreted the above sections to mean that local health authorities may enact new, and enforce pre-existing, standards related to the sale of tobacco products and inhalant delivery systems only if, as of January 2021, they also enforced each qualification located in ORS 431A.218(2)(b) and ORS 431A.198. The Retailers argued that the Flavor Ban fails this test because it did not, as of January 2021, contain all the minimum retail licensing requirements located in ORS 431A.198 for a retailer to qualify for a state tobacco license (e.g., the Flavor Ban does not contain a requirement that a retail premises be “fixed and permanent” as required in the State Tobacco Law).
The court was not convinced. The court highlighted the fact that the County had a local tobacco product retail licensure program prior to January 2021. ORS 431A.220 allows a local public health authority to enforce standards and licensing requirements related to the sale of tobacco products and inhalant delivery systems that were in place before January 2021. When read in context, the court found that both sections of the State Tobacco Law quoted above work together to (1) allow local public health authorities to continue to exercise their pre-existing authority to regulate the sales of tobacco products and inhalant delivery systems; and (2) allow ordinances that existed prior to January 2021 to continue to be enforced, even if they do not cover every single retail licensure requirement in the State Tobacco Law. Rather, the court believed the better interpretation of the State Tobacco Law is that it allows local public health authorities to enact their own standards that go beyond those established in the State Tobacco Law. The court concluded that the Flavor Ban does just that; it bans flavored tobacco products, which is a stricter standard regulating the retail sale of tobacco products and inhalant delivery systems. Thus, the court found that the State Tobacco Law does not preempt the Flavor Ban.
The Retailers’ Second Claim
With respect to the Retailers’ claim that the Flavor Ban violates the Oregon Constitution, they argued that the Oregon Constitution allows counties that have adopted home rule charters to exercise their authority over matters of county concern . The Retailers argued that the State Tobacco Law clearly illustrated that regulation of tobacco products and inhalant delivery systems are a matter of state concern, not county concern.
Again, the court was not convinced. The court pointed out that the State Tobacco Law fails to expressly make such standards a matter of exclusively state concern, but it expressly authorizes a local public health authority to enact such standards. Thus, the court concluded that the Flavor Ban is within the scope of what is allowed under the State Tobacco Law and does not violate the Oregon Constitution.
The County’s Flavor Ban remains in effect, but it remains to be seen whether the Retailers will appeal the court’s decision.