The Oregon Supreme Court on Wednesday questioned how far state regulators can go in controlling vape packaging that might appeal to minors, hearing arguments in a case that could redefine how far states can restrict commercial imagery tied to nicotine products.
The dispute centers on a 2015 state law banning the sale of vaping systems “packaged in a manner that is attractive to minors.” The Oregon Court of Appeals struck the rule down last October, siding with Portland retailer Division Vapor, which claimed the regulation violated free-speech protections under the state constitution. The Oregon Department of Justice appealed, asking the Supreme Court to reinstate the law or narrow the lower court’s ruling, according to media.
During oral arguments, Chief Justice Meagan A. Flynn pressed both sides on whether the law could be preserved in part. “Correct me if I’m wrong, but I think there’s a concession that at least some of the things that OHA has prescribed … run afoul of free-speech protections,” Flynn said, suggesting the court might issue a more limited interpretation rather than striking the statute entirely.
The Oregon Health Authority (OHA), which enforces the law, has periodically updated its guidance on what counts as “attractive.” Earlier lists warned against using animals, cartoons, or words such as tart, cool, and juicy. A 2023 amendment narrowed the focus to recognizable toys, candy, and images of minors.
Carson Whitehead, senior assistant attorney general for the Oregon DOJ, told the court that clearer legislative guidance would help the agency enforce the rule fairly. “The problem with the Court of Appeals opinion was that it’s a very blunt tool,” he said, arguing that the law and OHA’s evolving lists are separate issues.
Paul Bates, owner of Division Vapor, originally sued the Health Authority in 2021, claiming the rule forced him to spend hours covering product labels in a store that serves only adults. His case was initially dismissed but later revived when the Court of Appeals ruled that packaging design qualifies as expressive speech protected by Oregon’s constitution.
Representing Bates, John Thorpe of the Goldwater Institute argued Wednesday that narrowing the law won’t solve its fundamental flaws. “I don’t think the agency has the authority just to arbitrarily say, ‘We’re only going to enforce the attractiveness prohibition in certain ways but not other ways,’” he said. Thorpe told reporters afterward that the statute leaves retailers “in an impossible position,” citing how Bates was forced to obscure a cherry-flavor label created by a manufacturer.
Oregon’s constitution provides broader speech protections than federal law, giving commercial speech nearly the same status as political speech. The National Association of Attorneys General notes that Oregon has “no commercial speech doctrine that permits greater government regulation.”
The justices did not indicate when they will rule.
