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A petition to place a referendum on the May ballot has gathered enough signatures to halt enforcement of the ordinance.

PMG FILE PHOTO - An ordinance banning flavored tobacco products passed last year by Washington County, and which went into effect this year, is now paused following a petition against the law. County voters will decide in May whether to keep the ban in place or repeal it. The ban on flavored tobacco products in Washington County is on hold after a petition to put the question to voters gathered enough signatures to appear on the ballot last week.

The county government confirmed that the charter prohibits enforcement of Ordinance 878, which implemented the ban, until the matter is decided by voters.

"The County Elections Official has verified that petitioners have surpassed the required number of signatures to refer Ordinance 878 to the voters at the May 2022 election," a statement from the county reads in part.

Ordinance 878 was passed by Washington County commissioners in November and came into force at the start of this year. It bans all sales of flavored tobacco products, as well as synthetic nicotine, and also bans certain promotions and sales used to market nicotine products.

The ordinance was born of an attempt to tighten restrictions on marketing and sales of tobacco products to minors. Those in violation of the ordinance could be subject to civil penalties.

Now, enforcement of the ordinance stops and retailers can continue selling flavored tobacco products unless voters in Washington County opt to reinstate the ban.

Washington County elections supervisor Lisa Power said this kind of referendum "Is very rare." No one within the management staff at the department can recall another one in the past few decades.

"We process a lot of initiatives, but this is the first referendum that we are aware of in our time here," Power said.

The petition was filed through a committee called No on 878, the chief petitioner of which is Jonathan Polonsky, chief executive officer of the convenience store chain Plaid Pantry.

The petition gathered the required 9,939 signatures needed in order to send the question to the May ballot. That number is calculated via a formula based on how many people in the county cast votes for governor during the most recent general election.

Polonsky said that the ban significantly impacted Plaid Pantry's sales during the few weeks that the ban was enforceable.

"It's a huge impact on businesses like mine," Polonsky said. "We forecasted it would reduce revenues by 20% for us … it was around that for the two weeks that we were unable to sell flavored tobacco in our stores."

Plaid Pantry has 107 stores, 24 of which are in Washington County.

But Polonsky said that it's smaller stores, particularly smoke shops that exclusively sell tobacco products, that have been hit hardest by the ordinance.

"They've had to close down or shutter their stores," Polonsky said.

He also said that Plaid Pantry was on board with the initial intent behind the ordinance, which started out as an effort to keep tobacco products out of the hands of minors, but he thinks that the scope of the law became too broad and punitive.

"The stated goal, which Plaid Pantry aligns with 100 percent, was to keep restricted products out of the hands of young people," Polonsky said. "It started back in July basically with the county coming up with an initial proposal that banned flavored vaping products, and it morphed into a ban on all flavored tobacco and synthetic nicotine, which is pretty aggressive."

County employees said there is little they can say about the ordinance now that it's been referred to the ballot. Washington County spokesperson Philip Bransford cited ORS 260.432 in saying why public employees cannot comment on the referendum now that it's been approved for the May 17 ballot.

That section of Oregon law states that public employees cannot "promote or oppose any political committee … the gathering of signatures on an initiative, referendum or recall petition, the adoption of a measure or the recall of a public office holder while on the job during working hours."

That statute does not restrict elected officials, like the commissioners themselves, from voicing their opinions, however.

Commissioner Jerry Willey said that he opposed an outright ban because he thought it was an overreach. At first, commissioners were debating how to place additional regulations on the marketing and sale of flavored tobacco products, not a ban on all sales.

Washington County was looking, specifically, at ways to allay concerns that flavored tobacco products were marketed in a way that's appealing to children -- things like packaging that made the products look like candy and advertising signs for these products that were often placed in low store windows where young children could more easily see them.

Willey said that an outright ban wasn't on the table until the eleventh hour.

"A lot of things were trying to be happening at once, and it's kind of like you're throwing the baby out with the bath water," Willey said in a follow-up interview. "The bottom line is that this is an item that should be approved, or the decision should be made, by voters and not by county commissioners. I just think it was an overreach."

He clarified that he is against underage access to these products, but that the hit to local businesses and the lack of voter choice was why he voted against the ordinance.

"The decision is where it should be — with the voters," Willey said.

In a November statement by the county that followed the vote, Chair Kathy Harrington said, "The board heard compelling evidence that restricting access of flavored products results in fewer young people using addictive tobacco and nicotine substances as well as higher quit rates."

"Even though the vote was not unanimous, we clearly heard each commissioner express agreement that the use of tobacco substances is harmful and marketing strategies that aggressively target anyone in our community — especially young people and marginalized groups — are unacceptable," Harrington continued. "I'm confident that this step forward, along with the rollout of statewide tobacco retail licensing requirements, will serve to protect the health of all Washington County residents."

The vote in November was 3-2, with Commissioners Willey and Roy Rogers voting against the ordinance.

Editor's note: This story has been updated with new quotes and context from Commissioner Jerry Willey.


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