December 12, 2018

Oregon Vape Shop Owner Sues the State Over Labeling Restrictions

An Oregon vape shop owner is suing the state over rules that prevent vendors from truthfully describing the vapor products they sell. Paul Bates, who owns two Portland vape shops called Division Vapor, is challenging the Oregon Health Authority on free speech grounds.

Oregon has strong free speech laws. According to the Goldwater Institute, which filed the lawsuit on Bates’ behalf, “The Oregon free-speech clause provides that ‘no law shall be passed restraining the expression of [speech] freely on any subject whatsoever.’ This means that, unless a recognized historical exception applies, the government cannot censor speech.”

But Oregon is doing just that, says Bates, by preventing him from using labels on e-liquid that have images or words that represent the flavors contained in the bottles. The state says the rules are necessary to protect children. But selling vapor products to minors is illegal, and Division Vapor doesn’t even allow minors (or adults under 21) inside the store, so the rules only serve to censor speech between adults about legal products.

“I started this business about five years ago, and it’s been hugely rewarding,” says Paul Bates. “We’re switching people from smoking to non-smokers, and yet now we have a law that prevents and stops us from having freedom of expression.”

We reported on Oregon’s packaging rules in September. They prohibit manufacturers and retailers from selling any vaping product (or cannabis product that is inhaled) from using images that include cartoons, celebrities, athletes, mascots, “fictitious characters played by people,” “other people likely to appeal to minors,” candy, desserts, soda, “food or beverages with sweet flavors including fruit or alcohol,” and “the shape of any animal, commercially recognizable toy, sports equipment, or commercially recognizable candy.”

They also restrict the words that can be used to describe vapor products. Vendors are not allowed to use the names of any fruit, candy, dessert, juice, soda, or alcoholic beverage. Additionally, descriptive adjectives are prohibited, including: tart, tangy, sweet, cool, fire, ice, lit, spiked, and poppin’.

Other label elements can be restricted too, if inspectors arbitrarily decide they meet the standard of being “likely to appeal to minors.” The lawsuit claims that the rules are “vague, incomprehensible, and overbroad.”

“This imprecision gives Defendants virtually unconstrained, arbitrary, standardless, and unfettered discretion in interpreting its statutes and regulations, and subjecting Plaintiffs to a continued threat of penalties,” contends the lawsuit. The rules apply to e-liquid that’s nicotine-free too.

None of the adult customers in Bates’ shop get any benefit from not being able to read the labels on the bottles, and there are no children present to be protected.

Division Vapor employees actually spend hours every week covering the offending images and words with labels that say “Censored OAR #333-015-0300.” That number is the Oregon administrative regulation that forces the censorship. It’s time wasted. None of the adult customers in Bates’ shop get any benefit from not being able to read the labels on the bottles, and there are no children present to be protected. The rules amount to regulatory harassment.

“While proponents of Oregon’s regulations say they’re trying to protect children, these rules not only hurt consumers, but they hurt the free speech rights of hardworking small business owners trying to make a living,” Goldwater Institute Senior Attorney Matt Miller explains.

The lawsuit was filed in the Oregon State Circuit Court in Multnomah County, and names the Oregon Health Authority and OHA Director Patrick Allen as defendants. Bates is asking the court to declare the law underlying the rules unconstitutional, and to prevent the OHA from enforcing the administrative rules.

The Goldwater Institute is a conservative/libertarian think tank and litigation organization, based in former senator and presidential candidate Barry Goldwater’s home state of Arizona. The institute supports free markets and limited government.

Image courtesy Stray Fox Photography.

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy

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1

I’m sorry to hear that your state is doing all that,. I quess there not getting enough money out of it or they feel there not controlling enough. I myself was a smoker and how I wanted to quit but it is hard,& any smoker will tell you how hard it is. I had a heart attack almost 2 years ago and i knew i had to quit, i also have COPD, I then was told about vaping by a family member at the time I was using those CIGS PENS, They are very expensive, I was using them at first. So when I was told about the vaping, while I was still in rehab I told my family I did not want to come home smoking and my husband and my sister went to her vaping store and got everything I needed. So when I was released from rehab, I have been vaping every scene. I myself have recomend vaping to everyone who smokes or wants to stop smoking. Every place I go and shop online is very professional. As far as the labeling. We want to see what we are getting, You in the government. Leave us alone, I know it might be putting a hurt on your pockets because we quit smoking but life is better for the people, Americans. The most important thing of all, were adults we know what we want most of the time. Plus if your worried about the children as you say. Adults know how to protect there kids, they know how to put it up idems to protect there children. If they neglect there children, then that’s when you need to step in.
THANK YOU! I’m on DIVISION VAPORS, side. Please keep helping those who really needs the help, I’m one of them!

2

It’s absolutely harassment to anyone involved in trying to improve / extend someone’s life with a good thing, vaping. Vaping saves lives. If they TRULY want to protect children as they claim , they should take a look at the alcoholic drink section in ANY PUBLIC STORE, with same rules that are trying to be forced on Vaping products .

3

Yet they can have all the fruit and candy flavored booze they want right on the shelves at Walmart.

4

Great Story, I hope you keep reporting on it until the trial is over

5

hey Jim, thanks again for reporting. in the paragraph directly under the emboldened quote: “None of the adult customers…”, the first line says “actually actually”

Jim McDonald
Author6

Thanks for catching that!

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