The state banned flashy packaging, terms like ‘juicy,’ ‘cool’ and ‘lit’ in e-cig ads because of a law against targeting minors.
The Oregon Court of Appeals has ruled that sellers of e-cigarettes and related products can use “flashy” packaging and terms like “juicy” and “cool” in their marketing.
A decision issued Oct. 16 by Judge Scott Shorr holds that lawmakers violated constitutional free speech protections when they banned e-cigarette makers from marketing products with colorful packaging that could be attractive to children.
A 2015 Oregon law prohibited marketers of vape pens from the use of flashy packaging, like the use of cartoons, mascots, celebrity endorsements and certain descriptors like “tangy,” “fire,” and “cool,” and sweet flavor names and alcohol flavors.
The law led to rigorous interpretations opponents characterized as ridiculous. For instance, sellers were forbidden from describing an apple-flavored product as “apple.”
Conservative think tank the Goldwater Institute, which sued the Oregon Health Authority on behalf of a Portland vape shop owner, celebrated the ruling in a statement.
“While most would agree that minors shouldn’t buy e-cigarettes, Oregon law already prohibits minors from doing so, and even from entering stores that sell such products,” reads a statement by Goldwater Institute lawyer John Thorpe, who argued the case. “The new restrictions did nothing to protect minors; instead, they were a gross infringement on businesses’ speech rights, banning them from even providing factual descriptions of their products.”
The suit was initially brought in 2021 by Paul Bates, owner of Division Vapor with two locations in Portland, who argued product labels are a form of free speech. Bates lost his initial case in Multnomah Circuit County Court and filed an appeal this year.
Prior to the ruling, Bates’ stores covered offending product labels with white stickers.
“I’m grateful the appellate court struck down the government’s attempt to stop me from communicating with my own customers,” Bates said in a Goldwater Institute press release. “Shouldn’t my customers have access to the truthful, accurate information they need to make wise choices?”
Opponents of vaping and tobacco include the American Cancer Society and the National Library of Medicine, which states eight out 10 minors who use tobacco started with flavored nicotine products. Public health agencies in Oregon cite statistics showing an increase in chronic tobacco use following a 25-year trend of decreasing cigarette sales.
Tobacco remains heavily taxed and regulated in Oregon. Laws include:
- Tobacco products are illegal to buy for people under 21 and product inventory must be kept under lock and key by store owners.
- It must be sold in child-resistant packaging which is not attractive to persons under age 18.
- Vape pens and nicotine liquid may not be sold in marijuana dispensaries.
- Colleges, community colleges and trade schools must prohibit possession of inhalant delivery systems by people under 21.
- E-cigarettes, or inhalant delivery systems, are taxed at 65% of wholesale price in Oregon.
The law surrounding tobacco products is far from settled, in Oregon and around the country. The issue is even a plank in Donald Trump’s campaign platform. In September the former president boasted he’d “saved Flavored Vaping” while in office and would “save vaping again.” Critics say the former claim is revisionist — he actually raised the legal age to buy vaping products to 21 — but the executive director of the Vapor Technology Association has confirmed Trump met with the group shortly before that meeting. Vice president Kamala Harris has not commented on the subject, but industry advocates have been sharply critical of President Joe Biden, who has appointed several vaping critics to his cabinet.
In 2019, four school districts from different states sued e-cigarette company Juul, saying its aggressive marketing to kids had led to an epidemic among in schools and caused concern among parents and doctors. That lawsuit concluded last year when the company agreed to a $462 million settlement.
In 2021, the state legislature passed Senate Bill 587, which allowed local jurisdictions the power to regulate tobacco sales. That led the Washington County Commission to pass a ban on the sale of flavored tobacco products. The law was strongly opposed by tobacco retailers including Plaid Pantry, which helped put the ordinance on the ballot. An overwhelming majority of Washington County residents supported the ban, The Oregonian reported.
Retailers next took the case to circuit court where a judge found that only the state may outright ban the sale of a product. And earlier this year, the state appeals court upheld the Washington County ban on the sale of flavored tobacco products.
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