Bill seeks to ban flavored tobacco sales across Oregon

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PORTLAND, Ore. (Portland Tribune) -- A bipartisan bill in the Oregon Legislature would enact a statewide ban on flavored tobacco and nicotine products — a step that the Washington County Board of Commissioners hoped for when it enacted a similar ban in late 2021.

HB 3090, introduced in the young 2023 legislative session by Rep. Lisa Reynolds, an Oak Hills Democrat, would end the sale of all flavored tobacco products, including menthol products, statewide. The bill is also sponsored by Sens. Elizabeth Steiner, D-Portland, and Bill Hansell, R-Athena, as well as and Rep. Hai Pham, D-Hillsboro.

Washington County enacted a ban on such sales in late 2021, with Commissioner Nafisa Fai, who championed the ordinance, saying she hoped the county would set a trend for the rest of the state to follow.

She said the newly introduced bill is a step in the right direction.

“It’s a good sign, and I think Washington County was a good role model to kind of nudge the state,” Fai said. “I’m glad to see our legislators brought forward a ban statewide, and I’m interested in seeing how Washington County can continue playing a role in supporting (them) to pass this.”

Last year, the Multnomah County Board of Commissioners enacted a similar ban on flavored tobacco and nicotine product sales.

But the bans have seen legal challenges since. 

In Washington County, a group opposed to the ordinance referred the question to county voters of whether to keep the ban in place. Voters resoundingly approved of keeping the ban in place, with nearly 76% of the vote. 

Later in the year, a circuit court judge struck down the ban and said that the county lacked the authority to enforce it, after a group of tobacco lounges sued the county in early 2022.

Washington County appealed that ruling to the Oregon Court of Appeals.

But that legal battle might become moot if the Oregon Legislature ends up passing a statewide ban this year.

Judge Andrew Erwin wrote in his judgment against the county’s ban that the authority to enact it rested with state lawmakers, since it’s a state regulatory system that grants flavored tobacco merchants their licenses to sell these products.

“Certainly, the county has broad power to regulate how sales are made, but they cannot bar them entirely,” Erwin wrote in his September decision letter.

The American Cancer Society’s Cancer Action Network has been a driving force behind all these bans, saying that flavored products hook minors on nicotine and contribute to more smokers, and therefore more cancer, in society.

“With a new year and new legislative session comes a new opportunity for Oregon lawmakers to prioritize the health of Oregonians over tobacco industry interests and bottom line,” said ACS CAN director of government relations in Oregon, Jamie Dunphy, in a press release about the new state bill. “Ending the sale of menthol cigarettes and all other flavored tobacco products would be a huge step in that direction.”

Fai said she spoke with Steiner and thinks Washington County’s ordinance will act as a sort of blueprint for crafting this legislation.

Many of the people with whom Fai worked on the language of Washington County’s ban are also working on the state bill, Fai said.

“From what I understand, it’s being modeled after a lot of the language we used in our ordinance,” Fai said. “It’s going to be best-practices-based … so, I think it’s fair to say that it will have a lot of the same language.”

As to whether Washington County will continue to pursue an appeal of Erwin’s ruling, Fai said the board would take the advice of the county’s legal counsel, Tom Carr.

“If it’s unnecessary to keep the court battle going and waste taxpayers’ money, then it’s not in the best interest of Washington County, and we’d certainly drop it,” Fai said. “But we’re not law experts … and I think we’ll take the direction he presents.”

She also noted that legislative bills can change throughout the committee process, so if the state law ends up being a different ban than Washington County desires, the board may push for local laws that further restrict sales, or they may push for complimentary legislation from the state.

“At this point, I think the state bill will mimic Washington County’s ordinance,” Fai said. “And if it doesn’t, we’ll keep fighting for Washington County residents and bring forward legislation that keeps protecting our county residents.”