Judge rules Ohio law that keeps cities from banning flavored tobacco is unconstitutional

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An Ohio law prohibiting 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 had issued a temporary restraining order in April that stopped the law from taking effect. The measure had become law in January, after the Republican Legislature overrode GOP Gov. Mike DeWine’s veto of a budget measure that put regulatory powers in the hands of the state.

The ruling stemmed from a suit brought by more than a dozen cities, including Columbus and Cincinnati, and Serrott's decision means their bans will stay in effect. The ruling, though, applies only to those cities and is not a statewide injunction.

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

Lawmakers passed the 2022 legislation days after Ohio’s capital city, Columbus, cleared its bans on the sale of flavored tobacco and menthol tobacco products, which would have been enacted early this year.

Anti-tobacco advocates, the American Cancer Society Cancer Action Network and DeWine himself harshly criticized the override as a win for the tobacco industry, saying it enables addiction in children as tobacco and vaping products made with fruit or candy flavors becomes more popular and accessible to kids.

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

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

Proponents of the measure tout it as a way to maintain uniformity for tobacco laws and eliminate confusion for Ohioans. They argue the state should have control rather than communities because restrictions on the products would affect state income as a whole.

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