Washington County has just adopted an ordinance entitled “Access to Tobacco, Synthetic Nicotine and Inhalant Delivery Systems”. While the bulk of the ordinance appears to be concerned with keeping flavored tobacco products out of the hands of minors, the ordinance contains language which, if passed, appears to have the effect of banning cannabis vaping products.
What Defines Tobacco Now?
Specifically, the ordinance defines “Flavored Product” as “Any synthetic nicotine product or tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to or during the consumption of the product, including, but not limited to, any taste or smell relating to chocolate, cocoa, menthol, mint, wintergreen, vanilla, honey, molasses, fruit, or any candy, dessert, alcoholic beverage, herb, or spice.” Draft 2.20 B.
The ordinance goes on to define “Tobacco Product” as “(1) Any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus; (2) Any inhalant delivery system, and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains tobacco or nicotine; or (3) Any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, including, but not limited to, filters, rolling papers, blunt or hemp wraps, hookahs, and pipes.” Draft 2.20 F.
The above “tobacco product” definition, in part (2), obviously encompasses cannabis products to the extent they are contained in an “inhalant delivery system” (the definition of which includes products used with cannabinoids).
Section 2.30 of the ordinance, entitled “Prohibitions,” contains the following language: “B. Flavored products restricted. No person shall sell, offer for sale, or otherwise distribute any flavored tobacco product or flavored synthetic nicotine product.”
Annoyingly, “Flavored tobacco product” is not a phrase that is specifically defined in the ordinance. However, the definition of “Flavored Product” specifies that it can include “any … tobacco product…” – which is a defined term. So if the definition of “Tobacco Product” includes non-tobacco items such as cannabis vapes – which it does – and those cannabis vapes contain “a taste or smell, other than the taste or smell or tobacco, that is distinguishable by an ordinary consumer” – which they all do – then this ordinance defines those products (that is, all cannabis vape products) as “flavored” “tobacco products” which are unlawful to sell in Washington County.
What's The Rush?
The county’s rush to pass the ordinance likely stems from impending state preemption under Senate Bill 587. The legislation, in addition to creating a statewide tobacco retail license, will preempt local tobacco and vape ordinances enact after January 1, 2022. A PowerPoint presented to the county stated, “If the Board wishes to control regulation in Washington County, the ordinance needs to be effective before January 1, 2022.” Coincidently the ordinance takes effect on December 2, but the county in a press release stated enforcement will not begin until January 1, 2022.
We don’t believe it is the intent of Washington County to ban any products regulated by the OLCC, and we urge the County to fix this as soon as possible.
Green Light Law Group associate Brett Mulligan contributed reporting to this article.