21+ Tobacco and Vapor Retail Association of Oregon v. Multnomah County

The Oregon Court of Appeals upheld Multnomah County’s law ending the sale of flavored tobacco products, finding that it is not preempted by state law. The lawsuit, initiated by the tobacco industry, challenged the county's authority to enact such a ban, which was set to take effect in 2024. This decision follows a 2024 Court of Appeals ruling upholding a similar law in Washington County. The court's decision affirmed that local health authorities have the legal right to regulate the sale of tobacco products to protect public health.

The Campaign for Tobacco-Free Kids filed an amicus brief, joined by other leading public health, medical and community groups, in support of the Multnomah County law (see "Related Documents").

21+ Tobacco and Vapor Retail Association of Oregon v. Multnomah County, 339 Or App 554, Court of Appeals of the State of Oregon (2025).

  • United States
  • Apr 9, 2025
  • Court of Appeals of the State of Oregon
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Parties

Plaintiff

  • 21+ Tobacco and Vapor Retail Association of Oregon
  • No Moke Daddy, LLC d/b/a Division Vapor
  • Paul Bates

Defendant Multnomah County

Legislation Cited

Multnomah County Ordinance (MCO) 1311

Tobacco retail licensure (TRL), ORS 431A.190 to 431A.220

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

“In our view, plaintiffs’ argument fails, because it starts from an incorrect premise concerning the role of the state, on the one hand, and the role of its political subdivisions, on the other, in regulating the sale of tobacco products and inhalant delivery systems under Oregon’s scheme for TRL. In Schwartz, we concluded that a Washington County ordinance prohibiting the sale of flavored tobacco and flavored synthetic nicotine products in Washington County was not preempted by SB 587, but was, in fact, expressly permitted by that legislation because the ordinance was a “standard” within the meaning of ORS 431A.218(2)(a). Id. at 356-57. We think it follows from that ruling—i.e., that the legislature expressly authorized local public health authorities to enact “standards” in addition to those standards imposed by state law, and that an ordinance prohibiting the sale of flavored tobacco and flavored synthetic nicotine products is such a “standard”—that the ordinance in this case, which prohibits the sale of Flavored Tobacco Products, does not run afoul of Article VI, section 10, of the Oregon Constitution by “legislating matters of state concern,” as plaintiffs contend. Put another way, contrary to plaintiffs’ arguments, under ORS 431A.218(2)(a), enacting standards “for regulating the retail sale of tobacco products and inhalant delivery systems for purposes related to public health and safety” is a matter of local concern. That is, unlike marriages, which were at issue in Li, and the regulation of which Oregon law placed “exclusively within the province of the state’s legislative power,” and “the county’s involvement in the license-issuing process is ministerial only,” 338 Or at 392, 396, under ORS 431A.218(2)(a), a local public health authority has broad (and discretionary) authority to enact standards regulating the sales of tobacco products in addition those standards created by state law. See Thunderbird Mobile Club, LLC v. City of Wilsonville, 234 Or App 457, 478, 228 P3d 650, rev den, 348 Or 524 (2010) (a city’s ordinances “regulat[ing] plaintiff’s land uses in general, and preservation of low-income housing in particular, are well within the city’s longstanding delegated authority under state statutes and administrative rules” and thus were not “within the ‘locus of power’ traditionally and exclusively reserved to the state”).”