Oregon Court Strikes Down Limit on Vape Pen Packaging

From Bates v. Oregon Health Authority, decided yesterday by the Oregon Court of Appeal (Judge Scott Shorr, joined by Judges Josephine Mooney and Ramón Pagán):

In 2015, the legislature passed House Bill (HB) 2546, which addressed a number of issues involving “inhalant delivery systems,” commonly known as “vape pens” or “e-cigarettes.” The bill, among other things, outlawed the sale of such products to minors, banned vaping indoors by adding inhalant delivery systems to the Oregon Indoor Clear Air Act, and, as relevant to the current matter, created certain requirements surrounding the sale and packaging of inhalant delivery systems…. [The bill] states: “It is unlawful: … (f) To distribute, sell or allow to be sold an inhalant delivery system if the inhalant delivery system is packaged in a manner that is attractive to minors, as determined by the [Oregon Health Authority] by rule.”

The Oregon Health Authority (OHA) subsequently promulgated a number of regulations regarding packaging of inhalant delivery systems, including OAR 333-015-0357, which stated:

“(1) An inhalant delivery system is packaged in a manner that is attractive to minors if because of the packaging’s presentation, shape, graphics, coloring or writing, it is likely to appeal to minors.

“(2) The Authority considers the following non-exclusive list to be likely to appeal to minors:

“(a) Cartoons;

“(b) Celebrities, athletes, mascots, fictitious characters played by people, or other people likely to appeal to minors;

“(c) Food or beverages likely to appeal to minors such as candy, desserts, soda, food or beverages with sweet flavors including fruit or alcohol;

“(d) Terms or descriptive words for flavors that are likely to appeal to minors such as tart, tangy, sweet, cool, fire, ice, lit, spiked, poppin’, juicy, candy, desserts, soda, sweet flavors including fruit, or alcohol flavors; or

“(e) The shape of any animal, commercially recognizable toy, sports equipment, or commercially recognizable candy.”

The court held that that the law violated the Oregon Constitution’s free speech provision. Oregon courts have developed an unusual framework for dealing with that provision, and I won’t dwell on it here. Here, though, is the heart of the argument; I expect it would also be a powerful argument under a federal commercial speech challenge, though perhaps not as conclusive as it is under Oregon constitutional law:

The parties do not dispute that limiting minors’ use of vaping products is a legitimate legislative purpose. We agree…. However, ORS 431A.175(2)(f) is only concerned with the expressive content of the packaging of products legally sold to consenting adults. If the products are packaged in a manner that is not attractive to minors, the sale is lawful; if they are packaged otherwise, the sale is unlawful. The law therefore restrains expression and does not regulate the effect of a sale to a minor or a minor’s later use of the product….

Defendants do not suggest any basis for finding this law to fall within any historical exception [to the state constitutional provision, such as] {“perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants”} and we are aware of none….

John Thorpe and Herbert G. Grey represent plaintiffs.

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