Judge Andrew Erwin says that the county does not have the authority to enact an outright ban.

TRIBUNE PHOTO: JONATHAN HOUSE  - Washington County passed an ordinance last year to ban all sales of flavored tobacco. Voters upheld the ban at the ballot in May, but a judge just ruled that the ordinance is preempted by state law.

A Washington County judge ruled this week against the county's ban on flavored tobacco products, saying it is unenforceable and preempted by state law.

It's the biggest development so far in a legal battle that resulted after Washington County commissioners last year enacted Ordinance 878, which banned all sales of flavored tobacco products in the county. Commissioners said the ordinance would protect minors from being influenced by the marketing of flavored products and getting hooked on nicotine.

Enforcement of the ban was put on hold this year, however, as result of lawsuits filed in opposition.

Circuit Court Judge Andrew Erwin's ruling was on a lawsuit lodged by a group of tobacco lounges for adults located in Washington County. They argued that, because minors aren't even allowed on their premises, the sweeping ban was doing more than the county's stated goal of keeping minors from purchasing tobacco and was instead punishing businesses that were licensed to operate by the state.

In July, Erwin issued a temporary stay of enforcement on the ban while the matter was argued in court.

Now, the judge has sided with the plaintiffs in saying that the county's ban is not legal.

Erwin pointed out in his Monday, Sept. 19, ruling that while many of arguments in court focused on the public health benefits of banning flavored tobacco and nicotine products, the legal issue is whether the county actually has the authority to ban tobacco products from being sold at all.

"The dispute before this court does not hinge on whether the County's actions are virtuous or even likely to result in decreased use of tobacco by minors," Erwin wrote in his decision. PMG FILE PHOTO - Judge Andrew Erwin issued a ruling out of the Washington County Circuit Court, which is housed in Hillsboro, saying that the county's ban on flavored tobacco products was at odds with state law.

He instead pointed to the definitions outlined in Oregon Senate Bill 587, which details how businesses must be licensed by the state to sell tobacco products. It says that local jurisdictions can further regulate how tobacco sales are monitored and conducted.

"This is the flaw in the County's interpretation," Erwin wrote. "Their ordinance does not seek to enforce these standards and/or any additional standards, nor does it seek to establish 'additional' local qualifications before a retailer may sell flavored tobacco products.

"Instead, it deletes these standards and qualifications by enacting a blanket prohibition on retail sale of flavored tobacco and nicotine products in Washington County," the judgment continued. "Certainly, the county has broad power to regulate how sales are made, but they cannot bar them entirely."

Erwin stated in his decision that when the county's attorneys were asked in court whether they interpreted this part of state law to mean that the county could ban all tobacco products, flavored or otherwise, "the County conceded that it did not."

"It's hard to understand how that same licensing scheme would in turn authorize a partial ban when those products have been duly licensed by the same legislative scheme that would prevent a complete ban," Erwin's decision concluded.

This issue of how far to take the county's action was, essentially, the sticking point for the two county commissioners who voted against the ordinance last year: Commissioners Jerry Willey and Roy Rogers.

"The original ordinance was intended to put additional restrictions on the ability for these kids to get flavored tobacco products," Willey said during a February interview on the ban.

The county heard presentations from the American Cancer Society that these products were being marketed to children — with flavors that tasted like candy and were even packaged similarly to non-tobacco products.

There were marketing schemes where stores would place ads for these products on low windows, where children could see them, and where flavored tobacco products were put right next to cash registers.

"The original concept was we need to fix that and enhance the restrictiveness of that," Willey said.

Then, on a motion from Commissioner Nafisa Fai, the scope of the ordinance expanded to include an outright ban on all flavored tobacco products, including menthol products. The vote ultimately passed 3-2, with Fai joined by Commissioner Pam Treece and Chair Kathryn Harrington.

The commissioners stated at the time that they hoped other counties in Oregon would follow suit. Multnomah County has been eyeing how this all unfolds, too, as commissioners there weigh their own ban on flavored tobacco. PMG FILE PHOTO - Washington County Commissioner Nafisa Fai pushed to broaden the county's regulations on flavored tobacco products to include a total ban on all sales of such products.

Fai said she was "so disappointed" in Erwin's ruling, though could not be reached for further comment in time for this report.

The county issued a statement on Wednesday, Sept. 21, that said it would be looking into options for appeal.

"We respectfully disagree with the Court's ruling and are considering options for an appeal," the statement said. "In the meantime, the preliminary injunction from July 2022 will remain in effect, keeping Ordinance 878 on hold."

The American Cancer Society Cancer Action Network also issued a statement against the ruling.

"This decision by the Circuit Court against Washington County's ordinance to end the sale of flavored tobacco products is not only disappointing, but shortsighted and against the interest of public health," said Jamie Dunphy, Oregon director of government relations for the network, in an emailed statement.

The American Cancer Society said that it will continue supporting Washington County in its effort to end the sale of flavored tobacco products.

This isn't the only lawsuit that has resulted from the county's ordinance.

The first one to be filed in Washington County Circuit Court was brought by Jonathan Polonsky, chief executive of the Plaid Pantry chain of convenience stores. That lawsuit argued that the county couldn't enact such a ban without going to voters.

The plaintiffs gathered enough signatures before the spring election this year to refer the question to voters on the ballot, who resoundingly upheld the ban during the May primary election, with nearly 76% voting not to repeal the ordinance.

Then, Polonsky filed a lawsuit saying that the wording of the measure before voters was unconstitutional because he alleged it contained a "double negative" that might have confused voters into selecting the opposite choice from what they intended.

The ballot wording asked whether Ordinance 878 should be repealed, meaning a "no" vote upheld the ordinance and a "yes" vote would have struck it down.

Judge Theodore Sims ruled in July that Polonsky's lawsuit should be dismissed. The plaintiffs have appealed that decision.

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