Health Law Daily Local ordinance regulating promotion of vape use preempted by state law
Tuesday, June 9, 2020

Local ordinance regulating promotion of vape use preempted by state law

By Jeffrey H. Brochin, J.D.

Although the vaping retailers’ association bore a heavy burden to show that local regulations were unconstitutional beyond a reasonable doubt, that burden was met because of the inescapably clear state preemption language.

An appeals court in Washington state has affirmed the injunctive relief granted by the trial court to Anti-Smoking Alliance (Alliance) an association of vaping retailers, enjoining a county health authority (Board) from enforcing their ordinance restrictions on the promotion of vape products indoors. State law clearly authorized the Board to regulate the "use" of vapor products indoors generally, but the Board’s authority in that matter was limited by the specific preemption language in the state statute: the board did not have the authority to regulate the use of vapor products in indoor public places if such regulation established requirements for the promotion or sale of vapor products at retail (Anti-Smoking Alliance v. Tacoma-Pierce County Department of Health and Health Board, June 2, 2020, Glasgow, R.).

State statutory provisions. In January 2016, the Board adopted EHC chapter 9 regulating the sale, use, and availability of vapor products. The Alliance objected to a number of the new requirements and filed suit to enjoin their enforcement. In June 2016, the state legislature enacted chapter 70.345 RCW, which governed the vaping industry in Washington. Relevant to the instant case, the statute expressly prohibited political subdivisions from "adopting or enforcing requirements for the licensure and regulation of vapor product promotions and sales at retail." The statute also generally prohibited political subdivisions from regulating the use of vapor products in outdoor public places; however, the statute permitted political subdivisions to regulate the use of vapor products in indoor public places so long as they permit the use of vapor products for tasting and sampling in retail outlets.

Restrictions under local ordinance. After a public comment period, the Board revised EHC chapter 9, "Restrictions on the Use of Vapor Products," noting that the amended regulations’ purpose was to provide for and promote the health, safety, and welfare of the general public. The Board made several findings related to the public health risks posed by vapor products, particularly as they relate to youth and secondhand exposure to vapor emissions, and the need for a comprehensive regulatory framework addressing those risks.

Among other things, the ordinance provided that no retail outlet may offer tastings of vapor products to the general public unless certain conditions were met, such as, installation of a specific type of ventilation system, that e-liquid offered for tasting must be nicotine-free, that tastings may only occur at the sales counter, and that no more than three customers may taste at one time. Any violation of section 6 would be deemed a misdemeanor. The Alliance filed for injunctive relief, and the trial court granted the injunction, after which the Board filed the instant appeal.

Washington Constitution. Article XI, section 11 of the Washington Constitution states that: "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." The scope of a county’s police power is broad, encompassing all those measures which bear a reasonable and substantial relation to promotion of the general welfare of the people.

Notwithstanding the foregoing, a state statute preempts an ordinance on the same subject if the statute occupies the field, leaving no room for concurrent jurisdiction, or if a conflict exists such that the statute and the ordinance may not be harmonized. A statute preempts the field and invalidates a local ordinance if there is express legislative intent to preempt the field or if such intent is necessarily implied., but in the absence of express intent, field preemption may be inferred from the purpose of the statute and the facts and circumstances under which it was intended to operate.

Express field preemption. The appeals court found that the legislature expressly intended to preempt the field of vapor product promotions and sales at retail. Although the legislature did not intend to occupy the entire field of regulating vaping products and businesses—because it expressly granted some measure of concurrent jurisdiction by permitting local governments to regulate the use of vapor products in indoor public places—nothing prevented the legislature from expressly occupying a narrower field by more specifically defining the contours of its intended preemption. In the instant case, the legislature expressly prohibited local governments from adopting or enforcing requirements for the licensure and regulation of vapor product promotions and sales at retail.

Based on the foregoing, the appeals court affirmed the trial court’s grant of injunctive relief in favor of the Alliance.

The case is No. 52458-9-II.

Attorneys: Thomas T. Osinski Jr. (Osinski Law Offices PLLC) for Anti-Smoking Alliance d/b/a Pink Lung Brigade. Lori Marie Bemis (McGavick Graves, P.S.) for Tacoma Pierce County Health Department and Health Board.

Companies: Anti-Smoking Alliance d/b/a Pink Lung Brigade; Tacoma Pierce County Health Department; Health Board

MainStory: TopStory CaseDecisions FDCActNews LabelingNews PreemptionNews SafetyNews TobaccoNews WashingtonNews

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