Judge rules Ohio law preventing cities from banning flavored tobacco is unconstitutional

An Ohio law that prohibits cities from banning the sale of flavored tobacco products is unconstitutional, a judge has ruled.

The state is expected to appeal the ruling issued Friday by Franklin County Common Pleas Court Judge Mark Serrott, who issued a temporary restraining order in April that prevented the law from taking effect. The measure became law in January after the Republican Legislature overrode Republican Gov. Mike DeWine’s veto of a budget measure that placed regulatory powers in the hands of the state.

The decision resulted from a lawsuit filed by more than a dozen cities, including Columbus and Cincinnati, and Serrott’s decision means his bans will remain in effect. The decision, however, only applies to these cities and is not a state injunction.

The measure, vetoed in 2022 before reappearing in the State Budget, said that the regulation of tobacco and alternative nicotine products should be up to the state, and not municipalities. It also prevented communities from voting to restrict things like flavored e-cigarettes and sales of flavored vaping products.

Lawmakers approved the 2022 legislation days after Ohio’s capital, Columbus, passed bans on the sale of flavored tobacco and mentholated tobacco products that would have been enacted earlier this year.

Anti-tobacco advocates, the American Cancer Society Cancer Action Network and DeWine himself sharply criticized the replacement as a victory for the tobacco industry, saying it enables addiction in children as tobacco and vaping products made with tobacco flavors fruits or sweets become more popular and accessible for children.

Opponents of the measure argued, in part, that it violates Ohio’s home rule provision, which allows local governments to create their own laws as long as they do not interfere with the state’s revised code. Serrott agreed, finding that the law was designed only to prevent cities from exercising self-government.

At the time of the override vote, Senate President Matt Huffman said lawmakers had carefully reviewed the language with the Legislative Service Commission, a nonpartisan agency that drafts bills for the General Assembly, and did not believe it would impact all possible tobacco restrictions that local governments could pass.

Supporters of the measure see it as a way to maintain uniformity in tobacco laws and eliminate confusion for Ohioans. They argue that control should belong to the State and not the communities, because restrictions on products would affect the income of the State as a whole.

DeWine maintained that the best way to ensure uniformity in these laws would be a statewide ban on flavored tobacco.