Cities vs. States: Battle for the Right to Ban Flavored Vapes

Keeping tobacco and nicotine products out of the hands of children should be a straightforward, universally supported public health goal. Indeed, even a highly polarized U.S. Congress managed to pass the Family Smoking Prevention and Tobacco Control Act in 2009, which raised the federal minimum age for cigarette sales and banned characterizing flavors other than menthol. However, in the decade and a half since, the market has been revolutionized by the explosive rise of e-cigarettes (vapes), creating a new and complex challenge for public health advocates and regulators.

Vapes are now the most commonly used tobacco product among U.S. youth. Tobacco companies, in particular, have succeeded in making flavored e-cigarettes – which were not subject to the 2009 law’s flavor ban – wildly popular with tweens and teens. The 2024 annual National Youth Tobacco Survey reported that 1.63 million middle and high school students currently used e-cigarettes, and of those, a staggering nearly ninety percent used flavored products. This trend persists against a grim backdrop: tobacco use remains the cause of one in five deaths annually in the United States, a toll greater than that of HIV, illegal drug use, alcohol use, motor vehicle injuries, and firearm-related incidents combined, according to the Centers for Disease Control and Prevention (CDC).

In response to this youth vaping crisis, cities and counties across the nation have taken decisive action, passing local laws and ordinances to prohibit the sale of flavored tobacco and vaping products. But as they do, they are increasingly discovering a powerful and often unyielding ally of the tobacco industry: their own state legislatures. Capitulating to intense lobbying pressures, many state governments have passed preemption laws, which block or strip cities of their authority to regulate tobacco and vape products. This has ignited pitched legal battles over local control, public health, and constitutional principles – and in some cases, the cities are winning.

The Battle for Home Rule: A Landmark Case in Ohio

A prime example of this conflict unfolded in Ohio. In July, an Ohio appellate court delivered a significant victory for local governance, striking down a state law that prohibited municipalities from regulating tobacco. The court held that the state’s preemption law violated an amendment in the Ohio Constitution that grants cities the power of local self-government, often referred to as “home rule.”

This legal skirmish began in December 2022 after the city of Columbus passed an ordinance banning the sale of flavored tobacco products. The Ohio legislature responded swiftly, passing a state law that preempted, or blocked, all local regulation of tobacco products. The governor vetoed that bill, citing the high healthcare costs associated with tobacco use and noting that tobacco companies specifically market flavored products to appeal to youth. Undeterred, the legislature passed another, similar preemption law six months later. The governor vetoed it again, but this time, the legislature voted to override the veto, and the preemption law took effect.

The state law declared that tobacco regulation was a matter of “statewide concern” and that the state had adopted a “comprehensive plan,” thereby preventing cities from legislating in the same area. Columbus and other cities sued, arguing that this violated their constitutional home rule authority.

In Ohio, the state constitution grants municipalities the “authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” The appellate court found that the state’s preemption law was not a “general law” under the established legal framework. Rather than setting out its own substantive regulations for the public welfare, the court determined that the law’s primary purpose was simply to prohibit any local regulation. The court observed that the state law “regulates nothing yet seeks to preempt the field of tobacco policy,” and in doing so, it was “undermining the fundamental principle of the Home Rule Amendment that the government closest to the people serves the people best.”

While this ruling is a clear victory for home rule in Ohio, the fight is likely not over. The state may appeal the case to the Ohio Supreme Court, which could lead to a final, definitive decision on the matter.

A Nationwide Trend of Legal Challenges

The conflict between state and local authority over tobacco and vape regulation is not unique to Ohio. Similar legal battles are percolating or pending across the nation, with mixed results and high stakes.

Oregon: The state supreme court is poised to soon hear an appeal of a decision concerning whether a state statute preempted a county ordinance that prohibited the sale of flavored tobacco products. This case will be critical in defining the limits of local control in Oregon.
Missouri: New legislation limiting city regulation of tobacco is currently before the state senate. If it passes, it will almost certainly face legal challenges from municipalities.
Massachusetts: In a notable 2023 decision, the state’s supreme court held that a city’s unusual “Nicotine-Free Generation” ordinance was not preempted by state law. This ordinance, pioneered by the city of Brookline, prohibits tobacco and vape sales to anyone born after a certain date (January 1, 2000, in Brookline’s case), effectively creating a phased-in, permanent ban for future generations. The court’s ruling has emboldened other Massachusetts towns to adopt similar measures.
Michigan and Kansas: Courts in these states have also recently released decisions related to tobacco preemption, with mixed outcomes, further illustrating the complex and jurisdiction-specific nature of these legal fights.

The Stakes: Public Health and Local Democracy

The outcomes of these legal battles could not be more significant. The health consequences of vaping for children and adolescents are substantial and potentially lifelong. Nicotine is highly addictive and can harm the developing brain, affecting attention, learning, and mood. While public health initiatives have successfully reduced the number of young people vaping from a peak of over 5 million in 2019 to 1.63 million in 2024, city-level prohibitions on the sale of flavored tobacco products are considered an important and effective part of these ongoing efforts.

When state legislatures, often under the influence of powerful tobacco industry lobbying, pass preemption laws, they not only hinder public health progress but also challenge the principles of local democracy. These laws prevent cities from enacting policies that are responsive to the specific problems and values of their communities. The fact that states often become antagonists in their own cities’ endeavors to protect children is seen by many as an affront to both public health and local self-governance.

As these cases continue to move through the courts, they will set crucial precedents for the future of tobacco and vape regulation in the United States. The central question remains: who has the right to decide how best to protect a community’s children from the harms of nicotine addiction – the local governments closest to the people, or state legislatures influenced by powerful corporate interests?

Article source: Cities Battle State Legislatures for the Right to Regulate Vapes

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Matthew Ma

Marketing at Ecigator

With over a decade of experience in the e-cigarette industry, Matthew Ma is a seasoned expert in both the manufacturing and usage aspects of vaping products. His extensive background has provided him with a deep understanding of the intricacies and evolving dynamics of e-cigarettes.