550 P.3d 20
Or. Ct. App.2024Background
- Washington County, Oregon, passed Ordinance 878 (WCO 878), prohibiting the sale and distribution of flavored tobacco and flavored synthetic nicotine products within the county.
- Plaintiffs, including local businesses and individuals, challenged WCO 878, arguing that it was preempted by Oregon's statewide tobacco retailer licensure (TRL) scheme, codified in ORS 431A.190 to 431A.220.
- The trial court agreed with plaintiffs, ruling that WCO 878 was preempted by state law and permanently enjoined its enforcement.
- Washington County appealed, arguing that the ordinance regulated local public health and safety and was not preempted by the state’s TRL scheme.
- Multiple amici participated, including public health groups supporting the County and businesses supporting the plaintiffs.
- The Oregon Court of Appeals reversed the trial court, holding that WCO 878 was not preempted by state law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is WCO 878 preempted by Oregon's TRL scheme? | State law exclusively regulates tobacco sales; local bans/concurrent standards not allowed | Local governments can impose additional standards related to public health | WCO 878 is not preempted; local regulation permitted |
| Does state law show intent to completely preempt locals? | Legislature's intent was for exclusivity | Law allows additional local standards | No unambiguous preemption intent; local authority allowed |
| Can local ordinance be enforced concurrently with TRL? | Local law forbids what state law permits | Can comply with both by not selling banned products | Ordinance and state law can coexist concurrently |
| Does the type of local regulation matter (sale ban vs license)? | Local restrictions conflict with state licensing | Local bans on product types are about standards, not licensing | WCO 878 is a permissible local standard |
Key Cases Cited
- Owen v. City of Portland, 368 Or 661 (2021) (sets analytical framework for determining whether state law preempts local law)
- La Grande/Astoria v. PERB, 281 Or 137 (1978) (preemption where local law is incompatible with state law or where legislature intended exclusivity)
- Rogue Valley Sewer Services v. City of Phoenix, 357 Or 437 (2015) (presumes no preemption unless legislative intent is clear)
- Thunderbird Mobile Club v. City of Wilsonville, 234 Or App 457 (2010) (local ordinance with stricter requirements than state law not necessarily preempted)