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 county’s ban will not go into effect immediately.
Instead, the case now goes back to Washington County Circuit Court to address procedural issues and to finalize the judgment.
Washington County Public Health spokesperson Afiq Hisham said the process could take several weeks. The health department is planning to take additional time to provide local retailers with guidance and inspection steps when the ban goes into effect.
“We want retailers to succeed and will work with them to set them up for that success,” Hisham wrote in an emailed response to questions.
The State Supreme Court 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. The company that received approval manufactures vapes that use a person’s phone to verify their age and identity.
The FDA had previously banned fruit and candy flavored vapes over concerns about their appeal to teenagers.
But due to legal loopholes and the availability of black market products, Washington county says flavored vapes have remained widely available.
The county cites data from the 2024 Oregon Student Health Survey. According to that survey, 71 percent of youth who reported using a tobacco product in the past 30 days in Washington County said they used a flavored product.
“Flavors are a key driver of youth experimentation and addiction,” Hisham wrote.
“Ordinance 878 helps close the gap between federal regulation and what’s actually happening in communities.”
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.
