Ohio Judge Rules State Preemption Law Unconstitutional

An Ohio judge has invalidated a state law that would have prevented cities from passing flavored vape bans and other restrictions on nicotine and tobacco products harsher than the state’s. Ruling on a lawsuit filed against the state by 21 Ohio municipalities, Franklin County Common Pleas Court Judge Mark Serrott said the law violates the cities’ home rule powers, which are guaranteed by the state constitution.

Last month, Judge Serrott granted a temporary restraining order blocking the state law from taking effect as scheduled on April 23.

The court decision, announced May 17, allows the flavor ban passed by the city of Columbus to remain in effect, and leaves vape and tobacco restrictions passed by Toledo and some smaller cities intact. It also opens the door for Cleveland to pursue a flavor ban promised by Mayor Justin Bibb.

However, the decision only applies to the municipalities that joined the lawsuit filed by Columbus City Attorney Zach Klein. Unless other courts modify Judge Serrott’s decision, all other Ohio cities would be bound by the preemption law and unable to pass laws stricter than the state’s.

In addition to Columbus, the co-plaintiffs in the lawsuit were Athens, Barberton, Bexley, Cincinnati, Cleveland, Dublin, Gahanna, Grandview Heights, Heath, Hilliard, Kent, North Ridgeville, Oberlin, Oxford, Reynoldsburg, Springfield, Upper Arlington, Toledo, Whitehall and Worthington, according to UPI.

The state will appeal Judge Serrott's decision to the Ohio Tenth District Court of Appeals, according to the Columbus Dispatch.

The law preempting local vape and tobacco restrictions passed the Ohio General Assembly in last year’s budget bill. Governor Mike DeWine used his line-item veto power to remove the preemption language from the bill in January, but both houses of the legislature quickly voted to override the veto.

Five states—California, Massachusetts, New Jersey, New York, and Rhode Island—have flavored vape bans currently in effect. Utah passed a flavor ban in March that will become effective next January. Several major cities have passed flavor bans, including Chicago and Boulder, CO.