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The ruling's legal implications must be reviewed before next steps, says Public Health Director Jessica Guernsey.

Multnomah County's plan to propose a policy banning the sale flavored tobacco and vaping products is on hold following a court ruling against Washington County's ban.

In August, Multnomah County Health Officer Dr. Jennifer Vines briefed the county board about tobacco use's impact on health and Big Tobacco companies' marketing of flavored products to appeal to youths, low-income people and the LGBTQ and Black communities.

Chair Deborah Kafoury directed staff to return to the board in September "with a recommendation for policy language that will prevent the sale of flavored nicotine products."

Last year, Multnomah County's neighbor to the west — Washington County — approved an ordinance banning such products. On Sept. 19, Washington County Circuit Court Judge Andrew Erwin ruled the county ordinance was unenforceable and preempted by state law. Erwin had previously issued a temporary stay on enforcement of the ordinance at issue in the lawsuit, which was filed by a group of Washington County tobacco lounges. Washington County officials have said they are considering an appeal of the decision.

Multnomah County Public Health Director Jessica Guernsey says her team needs time to evaluate the Washington County court decision before making any recommendations to the board.

"We're just taking a step back to recalibrate on what that means, in a legal sense, to reset our timeline," Guernsey told the Portland Tribune. "We need to do our due diligence in factoring that into how we approach (recommendations). It's really the only responsible thing to do."

While it's important to consider, the court decision will not dictate the public health team's recommendations, however, Guernsey said.

She said it's the responsibility of public health to recommend policies that will best protect the well-being of Multnomah County residents, regardless of pending litigation.

Guernsey pointed to the Tobacco Control Network's 2022 policy recommendations guide, which states jurisdictions should ban all non-tobacco-flavored e-cigarettes and tobacco products to prevent youths from starting to use such products. The Tobacco Control Network is made up of tobacco control program managers from each state and territorial health agency.

After all, the board previously considered a proposal to enact a ban on all flavored tobacco and vaping products in late 2019 before the onset of the pandemic stalled that work.

Since then, the federal government has taken multiple steps to regulate flavored nicotine products. In 2020, the U.S. Food and Drug Administration removed cartridge-based flavored vapes from the market. Menthol cigarettes and vapes were exempted from the order, however. Also, flavored cigars and refillable and disposable flavored vapes are still on the market.

In June, the FDA ordered products from the popular vape producer Juul Labs Inc. off the market. The order came after the agency began requiring all producers of synthetic nicotine products to receive federal authorization to keep their products on the market earlier this year.

Furthermore, in June, the FDA proposed a ban on menthol cigarettes and cigars. A public comment period for the proposal ended in August.

The Oregon Health Authority has repeatedly urged the FDA to ban all flavored nicotine products.

"In a perfect world, we would have uniform decisions from the federal to state level about these very dangerous targeted products," she said. "In lieu of that happening, my job is to protect the people of Multnomah County, as is the board's. Sometimes we need to act."

Guernsey declined to discuss what other restrictions the county could place on flavored nicotine products if the board decided not to attempt an outright ban.

Many local jurisdictions outside Oregon, mostly in California, have banned flavored nicotine products, including menthol cigarettes and vapes.

The county doesn't have a timeline for when the issue will come before the board again, said Denis Theriault, spokesperson for the county.

People can still submit comments online about the county's plan to restrict the sale of flavored nicotine products. To submit a comment, click here.

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