The Oregon Court of Appeals has ruled that the state law restricting the words and images used on vape product packaging, and the administrative rules that detail the restrictions, violate the free speech guarantees of the state constitution. The decision, handed down yesterday, reverses a lower-court ruling that upheld the state restrictions.
The appeals court sided with Division Vapor owner Paul Bates, who filed the lawsuit challenging the state restrictions in 2018. The lawsuit, which named the Oregon Health Authority as defendant, was originally filed in the Oregon State Circuit Court in Multnomah County.
The law, passed in 2017, prohibits vape businesses from selling vaping products “in a manner that is attractive to minors,” and gave the Oregon Health Authority (OHA) power to create specific regulations, which the agency did. The resulting Oregon vape packaging rules took effect Sept. 1, 2018.
“An inhalant delivery system is packaged in a manner that is attractive to minors if because of the packaging’s presentation, shape, graphics, coloring or writing, it is likely to appeal to minors,” wrote the OHA in rule OAR 333-015-0357. “The Authority considers the following nonexclusive list to be likely to appeal to minors: Cartoons; Celebrities, athletes, mascots, fictitious characters played by people, or other people likely to appeal to minors; Food or beverages likely to appeal to minors such as candy, desserts, soda, food or beverages with sweet flavors including fruit or alcohol; Terms or descriptive words for flavors that are likely to appeal to minors such as tart, tangy, sweet, cool, fire, ice, lit, spiked, poppin’, juicy, candy, desserts, soda, sweet flavors including fruit, or alcohol flavors; or The shape of any animal, commercially recognizable toy, sports equipment, or commercially recognizable candy.”
Under the Oregon rules, a strawberry-flavored vape juice, for example, could not use the word “strawberry” or a picture of a strawberry on its label. If the strawberry flavor is tart, the label could not reflect that—even though sales to anyone under age 21 is illegal, and Division Vapor doesn’t allow anyone under 21 to enter the stores.
The appeals court decision invalidates those rules, unless the state appeals to the Oregon Supreme Court and wins. According to The Oregonian, the OHA has not decided yet whether it will appeal.
Image courtesy Stray Fox Photography.
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