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Oregon lawmakers violated the state constitution’s free speech protections when they prohibited e-cigarette makers from marketing their products with colorful packaging that could lure minors to start puffing, the Oregon Court of Appeals ruled Wednesday.
Since 2015, Oregon law has prohibited inhalant delivery systems, commonly called vape pens, from being marketed with “flashy packaging” — banning the use of mascots, cartoons, celebrity endorsements and even certain descriptive phrases including “lit,” “fire,” “poppin,’” and “spiked.”
Division Vapor owner Paul Bates sued in 2021 — saying the labels were a form of free speech — and while he lost the first round of litigation in Multnomah County Circuit Court, appellate judges disagreed and overturned the law entirely.
“It was an obvious point of law,” Bates said. “But I’m glad we won. Finally.”
The ruling from Presiding Judge Scott Shorr has no impact on other Oregon laws that forbid the sale of tobacco products to those under 21 and require that such products be kept behind the counter or under lock and key in stores.
It’s unclear if the ruling will lead to any changes on the consumer level, as the federal Food and Drug Administration already requires vape manufacturers to submit their products for review, and has rejected products that it believes don’t meet public health standards.
The U.S. Supreme Court in July agreed to hear a case from two such manufacturers who are challenging the FDA’s rejection of their products.
Regardless, anti-vaping advocates panned the ruling, saying that 90% of adult smokers began when they were underage.
“These companies are trying to attract a younger audience so they can have another generation of customers,” said Jamie Dunphy with the American Cancer Society Cancer Action Network. “We need to keep our kids from a lifetime of addiction.”
A spokesperson for the Oregon Health Authority said the agency is still deciding whether to appeal.
Washington and Multnomah counties, where officials passed blanket bans on flavored vape products that remain on hold amidst another court fight, said they were also reviewing the ramifications of the ruling.
The Court of Appeals cleared the way for Washington County’s ban to go into effect in May, but a new appeal to the state’s highest court means the prohibition remains in limbo, said county spokesperson Philip Bransford.
—Zane Sparling covers breaking news and courts for The Oregonian/OregonLive. Reach him at 503-319-7083, zsparling@oregonian.com or @pdxzane.
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