375 Or 227
Or.2026Background
- Washington County Ordinance 878 bans the sale of flavored tobacco and flavored synthetic nicotine products to anyone in the county, regardless of age. 1
- Plaintiffs, tobacco and nicotine retailers in Washington County, sued for declaratory and injunctive relief, arguing SB 587 preempted the ordinance. 2
- The trial court held SB 587 preempted the ordinance and permanently enjoined enforcement. 3
- The Court of Appeals reversed, holding SB 587 did not preempt the ordinance. 4
- SB 587 created a statewide tobacco retail licensure scheme and authorizes local public health authorities to enforce local standards regulating tobacco sales for public health and safety. 5
- The Oregon Supreme Court affirmed the Court of Appeals, reversed the trial court, and remanded. 6
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does SB 587 preempt WCO 878 by impossibility of concurrent operation? 7 | License lets retailers sell all tobacco products; local ban conflicts. | Retailers can comply with both by not selling flavored products locally. | No; the laws can operate concurrently. 8 |
| Did the legislature unambiguously make SB 587 exclusive? 9 | SB 587 and ORS 431A.218/220 show intent to preempt post-2021 local bans. | Statute expressly allows local standards governing tobacco sales. | No; exclusivity is not unambiguously expressed. 10 |
| Is WCO 878 a permitted local standard under ORS 431A.218(2)(a)? 11 | A ban is not a “standard for regulating” retail sales. | A ban is a regulation for public health and safety. | Yes; the ordinance fits the statute. 12 |
Key Cases Cited
- Owen v. City of Portland, 368 Or 661 (Or. 2021) (preemption turns on concurrent operation or legislative exclusivity 13)
- La Grande/Astoria v. Public Employees Ret. Bd., 281 Or 137 (Or. 1978) (local laws are invalid only if incompatible with state policy 14)
- Northwest Natural Gas Co. v. City of Gresham, 359 Or 309 (Or. 2016) (reiterates the La Grande/Astoria incompatibility test 15)
- Rogue Valley Sewer Servs. v. City of Phoenix, 357 Or 437 (Or. 2015) (presumption against displacing local civil or administrative regulation 16)
- Gunderson, LLC v. City of Portland, 352 Or 648 (Or. 2012) (preemption requires an unambiguous legislative intent 17)
- State ex rel. Haley v. City of Troutdale, 281 Or 203 (Or. 1978) (compatible local requirements are not preempted absent clear intent 18)
- Thunderbird Mobile Club v. City of Wilsonville, 234 Or App 457 (Or. App. 2010) (local law conflicts only when compliance with state law is impossible 19)
- Patton v. Target Corp., 349 Or 230 (Or. 2010) (courts will not import omitted legislative intent into a statute 20)
- Chamber of Commerce of the United States v. Whiting, 563 U.S. 582 (U.S. 2011) (license is permission to engage in conduct otherwise unlawful 21)