PORTLAND, Ore. (KOIN) — A months-long court battle in Washington County over a ban on sales of flavored tobacco products could be going statewide.
A circuit judge has ruled in favor of the businesses fighting to keep sales going, setting up for a potential appeal. This week, a circuit court judge ruled that while he doesn’t use tobacco products and believes there are health hazards associated with their use, Washington County has the power to regulate sales but can’t bar them entirely.
“We’re in the fight every day to keep our doors open,” said Jordan Schwartz, owner of Serenity Vapor Lounge. “Because if we can legally sell it but the customers don’t think we’re able to sell it, they just don’t come in the store and then we lose a lot of business because of that.”
It’s a fight some Washington County businesses took to court, following an ordinance to ban the sales of flavored tobacco products — a ban that left many, like Serenity Vapor Lounge, with almost no products and very little sales.
“We have two small little shelves that consist of the tobacco flavors and everything else was not allowed to be sold,” said Schwartz, adding sales went down at least 30% since the original ban was announced. “It’s picked back up, but we’ve definitely taken a pretty big decline as not everyone knows you can still buy in Washington County.”
This summer, a temporary injunction was filed to halt that ban on sales, allowing businesses to sell the products, and this week, a judge officially ruled in their favor.
“The decision to disallow licensed retail sale of such products must come from the state, not county by county,” ruled Circuit Court Judge Andrew R. Erwin. “The county has broad power to regulate how sales are made, but they cannot bar them entirely.”
“The ordinance has been declared unconstitutional because it is preempted by state law, specifically, Senate Bill 587 which created state licensure,” said Tony Aiello Jr., the attorney representing the businesses in this case. “This makes it clear to Washington County businesses that these products can be sold and are allowed to be sold and will not be taken off the shelves again, absent a ruling to the contrary from a higher court.”
In the county’s response, its Tobacco Prevention Coordinator, Gwyn Ashcom, said, “it’s already illegal to sell tobacco products to youth, but that doesn’t stop many retailers,” — a claim disputed by businesses involved in the court case.
“It’s offensive. We definitely take a high pride to make sure that we’ve never, ever sold to anybody under the age of 21. It’s of huge importance to us and the youth are not getting it from any of the retailers that are 21 and over establishment,” said Schwartz. “It’s very damaging to a business and without them really understanding and just saying they’re getting the products from our retailer stores, is inaccurate.”
In a statement, Washington County’s Health and Human Services Department says they disagree with the court’s ruling and are considering an appeal. However, as Aiello Jr. points out — while this ruling only applies to Washington County at the moment, if that appeal is heard in an appellate court, it could set a precedent for any county in Oregon that uses state licensure, extending well beyond the Portland metro.
“Once the case is heard by a court of appeals, it would become case law for any county that uses state licensure,” said Aiello Jr. “If Judge Erwin’s ruling was adopted by the Oregon Court of Appeals, that reasoning would apply statewide, which would say that counties are not allowed to ban flavored products.”
Washington County was one of nearly 350 localities nationwide to pass flavored tobacco bans. It’s unclear how early an appeal by the county could be heard in court.