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The county is still weighing whether to appeal the decision that struck down its flavored tobacco ban.

Washington County commissioners appear split over whether to appeal the recent court decision that struck down the county's ban on all sales of flavored tobacco products.

The county says it is still weighing its options to appeal the decision of Circuit Judge Andrew Erwin, who last week ruled that the county doesn't have the authority to enact an outright ban on tobacco products.

The ordinance passed on a narrow 3-2 vote of commissioners last year. The decision could be split along the same lines, although two commissioners have not stated whether they will seek an appeal.

"As a public health professional, I'm so disappointed with the ruling from Judge Erwin," said Commissioner Nafisa Fai, who originally proposed the ban. "This is once again Big Tobacco ignoring the will of voters and prioritizing profits over people and profits over public health." COURTESY PHOTO: - Washington County Commissioner Nafisa Fai pushed for an ordinance that banned all sales of flavored tobacco products last year. Now, the county is weighing whether to appeal after a judge ruled that the county's ordinance was unenforceable.

She wants the county to appeal, even taking the matter to the Oregon Supreme Court, if necessary.

"I will be aggressively working with my colleagues on the board to try and take this all the way to the Oregon Supreme Court," Fai added.

The two commissioners who voted against the ban in the first place, Jerry Willey and Roy Rogers, unsurprisingly said they're not in favor of appealing Erwin's decision to overturn it.

"I will be opposed to any kind of appeal by the county, primarily because we've spent an inordinate amount of time and money defending this ban," said Willey, who expressed concern during last year's discussions of the ordinance that it would unfairly harm local businesses.(PMG PHOTO: CHRISTOPHER OERTELL) - Washington County Commissioner Jerry Willey voted against an outright ban on flavored tobacco and says the county shouldn't waste more money defending it in court.

Rogers says he's not opposed to a ban, but he thinks it should be done through the Legislature, so it would apply across all of Oregon rather than only in Washington County.

"I'd love to ban it, but not in our area," said Rogers. "Let's do it statewide. Or, if we can't ban it … let's make sure you have good monitoring procedures.

"That was always our position," he added.


The county first began digging into the topic of flavored tobacco products last year, hearing presentations from the American Cancer Society that showed that many young smokers got hooked on nicotine products through flavored tobacco like menthol cigarettes and flavored vape pens.

The presentations also cast a negative light on the marketing practices for these products, which tend to be packaged and flavored similar to candy. Some of the advertisements for such products were placed on low windows, where children could see them easily.

The original intent of the county's ordinance was to put stricter regulations on these kinds of marketing and accessibility considerations. But, as the discussion developed, Commissioner Nafisa Fai floated the idea of an outright ban on all flavored tobacco products being sold in Washington County.

The ordinance was passed last fall and took effect earlier this year. A host of lawsuits resulted, including one that led to a recall on the ban to voters this May. Washington County resoundingly voted to keep the ban in place.

The lawsuit that the latest ruling came down from was brought in February by a group of tobacco lounges in Washington County — establishments like hookah lounges where adults can pay to smoke or buy flavored tobacco products and where minors are not allowed on the premises.

Judge Andrew Erwin's decision said, essentially, that because these businesses are licensed to operate by the state, Washington County cannot supersede the state's authorization by imposing an outright ban.

Best practices

While no decision has been made from the county yet on whether it would appeal last week's decision, Fai says she'll be urging her colleagues to keep fighting what she characterizes as "Big Tobacco" striking back at the county.

Erwin's ruling specified that the legal matter at the heart of the lawsuit is the question of the county's authority, not whether there was a public health virtue to banning the products.

"I'm not going to get into the legalities on that," said Fai. "I will say that an outright ban is based on public health best practice and it's one sure way to keep healthy people and healthy communities."

She added, "We need to keep fighting … if we want to protect our community, especially the most vulnerable of our community: our youth." COURTESY WASHINGTON COUNTY - Commissioner Roy Rogers also voted against the ban last year, saying he didn't think Washington County should ban products that are available statewide.

For his part, Willey says he wants the county commissioners to get back to the original intent of the ordinance and drop the idea of a sweeping ban.

"I'd like us to instead work with the convenience stores on enhancing ID (checks) and talking about what their marketing procedures are," Willey said. "All of those things the convenience stores were willing to discuss prior to the ban, and obviously, three of the commissioners were not willing to have those conversations."

Washington County Chair Kathryn Harrington and Commissioner Pam Treece did not return requests for comment on the ruling.

Harrington and Treece sided with Fai last year to approve the ban, but with Rogers and Willey opposed, they would both need to join with her again for the county board to approve an appeal of Erwin's decision.

Commissioners said they expect to discuss whether to appeal the ban at an upcoming meeting of the Board of Commissioners, likely in an executive session.

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