By Timothy S. Donahue

Top Takeaways:

• Denver vape shop owners sued the city on Jan. 23, seeking to block enforcement of the voter-approved flavored tobacco ban that took effect Jan. 1.
• The lawsuit claims the ban is unconstitutional and unevenly applied, citing exemptions for hookah tobacco and continued cigarette sales, and alleges economic harm to small businesses.
• City officials and public health advocates are defending the ordinance, saying it is aimed at reducing youth tobacco use and aligns with flavored tobacco bans upheld in other jurisdictions.

A group of Denver, Colorado, vape shop owners filed a lawsuit seeking to block enforcement of the city’s flavored tobacco ban, arguing that the ordinance is unconstitutional, unevenly enforced, and economically harmful to small businesses.

Several weeks after the voter-approved measure took effect on Jan. 1, the Rocky Mountain Smoke Free Alliance filed a lawsuit in Denver District Court. Denver voters passed the ban in November, adding the city to a growing list of U.S. jurisdictions that restrict or prohibit the sale of flavored tobacco and vaping products.

The complaint challenges the city ordinance on multiple grounds, alleging violations of equal protection, due process, and commercial speech protections under the U.S. and Colorado constitutions. The plaintiffs argue that the law unlawfully targets flavored vaping products while exempting hookah tobacco and permitting the continued sale of unflavored cigarettes, undermining the city’s stated public health rationale.

The suit also asks the court to declare the sale of separate flavor additives lawful, arguing that the ordinance relies on vague definitions tied to marketing, packaging, and labeling, making compliance unclear for retailers. According to the complaint, that uncertainty has already led to store closures, job losses, and an estimated $13 million decline in local tax revenue, though those figures have not been independently verified.

Under the Denver ordinance, retailers are prohibited from selling tobacco or nicotine products with a “characterizing flavor,” other than tobacco, including menthol. Certain products are exempt, including hookah tobacco sold at licensed hookah lounges. This carve-out has drawn criticism from affected vape retailers and forms a central part of the lawsuit.

City officials have defended the ban as a public health measure to reduce youth tobacco and nicotine use, citing flavored products as a key driver of youth initiation. The city has said enforcement will include education-based outreach and public-facing and undercover compliance checks, rather than immediate punitive action.

Public health advocates supporting the ordinance argue that the law is legally sound and consistent with measures upheld in other jurisdictions, citing court decisions in California, Massachusetts, and several municipalities that have rejected constitutional challenges to flavored tobacco restrictions.

Retailers are also saying the ban only pushes customers outside of city limits, where flavored products are still plentiful. Just beyond Denver’s borders, retailers say the effects of the ban were felt almost immediately. At Tokerz Head Shop in Aurora, about a block and a half outside the city line, owner Gordon McMillon said customers from Denver have already begun making the short trip to buy flavored nicotine and vape products no longer available in Denver.