Oregon has restricted the manner in which vape juice manufacturers can market their product. However, the rules they’ve set forth may be in direct violation of constitutional free speech.
The Goldwater Group, an Arizona group recently filed a lawsuit on the behalf of a Portland Vape shop. The group, working under the claim that a recently passed vape regulation may be violating Oregon’s Constitution, has decided to move forward with legal action.
Currently, Oregon vape restrictions, passed in 2016, limit what can and cannot be used on an e-juice label. As it stands now, everything from depictions of celebrities, athletes, mascots, fictitious characters, other people likely to appeal to minors, and food or drinks likely to appeal to those under the age of 18 such as: candies, soda, desserts, and sweet flavors – are all prohibited.
Earlier this year (2018), the Oregon Health Authority added a handful of labeling rules to the preexisting restrictions passed in 2016. The new subset of rules covered terms and descriptive words that appealed to minors like: tart, tangy, sweet, cool, fire, ice, lit, poppin’, juicy, candy, and desserts. The new rules would also prohibit the use of food images when used in unison with food related words.
Goldwater Group filed a lawsuit in Multnumah County on behalf of Paul Bates (Owner of Division Vapor), and is aiming to stop the Oregon Health Authority from prohibiting the words and images that can be used on e-liquids.
Many believe Oregon’s Free speech clause – Article 1 section 8 of their constitution to be exact – is quite broad in nature, opening it to a variety of different interpretations. The statement in question is worded as follows: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely.”
Goldwater Group is using the wording in the free speech clause to make their case. They state that the guarantee made in the clause prohibits the government from mandating that business in such a specific way. The lawsuit will seek to revise the current rules, and fix any damages caused by the state.
All this comes at a time where vaping industry has fallen under heavy FDA scrutiny. The federal organization recently labelled the rise in youth e-cig use an “epidemic.”
If you’ve been vaping for awhile, or witnessed regulatory action taken by the FDA, it’s quite easy to see the correlation between the state level restrictions and federal regulation. Currently, the Food and Drug Administration has taken interest in everything from e-juice flavors, to packaging and nicotine levels, and has shown no signs of slowing down either.
The FDA could easily use a similar tactic, that is heavily restricting e-juice labels (and what could be displayed on them), in an attempt to dismantle the entire vape industry in one fell swoop. Because fruit flavors are so vital to a successful quit for many, passing similar limits on free speech would at the federal level would spell disaster.
How would a vape market look with strict e-juice marketing regulations? One cannot be sure; but if you’re looking to get an idea, shopping at a vape shop in Oregon may be a good place to start. Labels used for cigarettes and smokeless tobacco products could provide another example as to the direction the FDA may head. One thing is for sure though, fancy bottles with images of cookies and cake and unique descriptive titling would likely be a thing of the past.
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